Case No. IP-2015-000152

58.The first step is to identify the characteristics of the average consumer in the circumstances of this case. Mr Muir Wood submits for the Claimants that the average consumer in this case is likely to be the average flagpole-buying consumer, rather than a more general purchaser of garden goods or home wares, because a flagpole, he submits, is a fairly niche product and its purchase is likely to be a considered one. It is not an everyday purchase. Mr Small makes no submissions about the characteristics of the average consumer for the Defendants.59.I am satisfied that the average consumer is, as Mr Muir Wood suggests, an average flagpole-buying consumer who may be buying a flagpole for his home or for a commercial setting. He is a construct made up of many different purchasers, some of whom may purchase a single flagpole, some of whom may purchase multiple flagpoles, and if the latter, he may make a test purchase first and, once happy with the quality of the product, return to make a multi-unit order. I am satisfied that the average consumer is likely to be driven by considerations of utility, quality and price rather than aesthetics or design, and that his purchase will be a considered one, rather than a whimsical or impulsive one. For that reason I consider that he is likely to pay close attention to all of the information on the listing, including reading the ‘Further details’ and at least some of the customer reviews. I am satisfied that this average consumer is one who has sufficient facility and experience with online purchasing to be confident enough to purchase such a large, utilitarian product online without the need to visually inspect it or discuss the purchase with a salesperson.