Case No. IP-2015-000152

s International Healthcare Ltd v Asda Stores Ltd [2012] EWCA Civ 24, [2012] F.S.R. 19. They appear in the skeleton arguments of both counsel and are sufficiently well-known that I will not repeat them here, although I do, of course, bear them carefully in mind. The Court of Appeal also considered likelihood of confusion in Comic Enterprises Ltd v Twentieth Century Fox Film Corp [2016] EWCA Civ 41. It endorsed the Specsavers approach to the assessment of the likelihood of confusion in paragraph 31, but provided further guidance in paragraphs 32, 33 and 34:[32] In Maier we explained (at [76]) that to this summary should be added the further guidance provided by the Court of Justice in Canon (at [29]) that the risk that the public might believe that the goods or services in question come from the same undertaking or, as the case may be, from economically-linked undertakings, constitutes a likelihood of confusion for the purposes of the provision. [33] The decision in Specsavers clarified one further important point concerning the context of the accused use. As this court said at [87]: “… In assessing the likelihood of confusion arising from the use of a sign the court must consider the matter from the perspective of the average consumer of the goods or services in question and must take into account all the circumstances of that use that are likely to operate in that average consumer’s mind in considering the sign and the impression it is likely to make on him. The sign is not to be considered stripped of its context.”[34] All of this guidance makes clear that the matter must be assessed from the perspective of the average consumer. This court considered the characteristics of the average consumer at some length in [Interflora v Marks & Spencer]. The following general points emerge further to those set out above:(i) the average consumer is a hypothetical person or, as he has been called, a legal construct; he is a person who has been created to strike the right balance between the various competing interests including, on the one hand, the need to protect consumers and, on the other hand, the promotion of free trade in an openly competitive market, and also to provide a standard, defined in EU law, which national courts may then apply;(ii) the average consumer is not a statistical test; the national court must exercise its own judgment in accordance with the principle of proportionality and the principles explained by the Court of Justice to determine the perceptions of the average consumer in any given case in the light of all the circumstances; the test provides the court with a perspective from which to assess the particular question it has to decide; (iii) in a case involving ordinary goods and services, the court may be able to put itself in the position of the average consumer without requiring evidence from consumers, still less expert evidence or a consumer survey. In such a case, the judge can make up his or her own mind about the particular issue he or she has to decide in the absence of evidence and using his or her own common sense and experience of the world. A judge may nevertheless decide that it is necessary to have recourse to an expert’s opinion or a survey for the purpose of assisting the court to come to a conclusion as to whether there is a likelihood of deception;(iv) the issue of a trade mark’s distinctiveness is intimately tied to the scope of the protection to which it is entitled. So, in assessing an allegation of infringement under Article 5(1)(b) of the Directive arising from the use of a similar sign, the court must take into account the distinctiveness of the trade mark, and there will be a greater likelihood of confusion where the trade mark has a highly distinctive character either per se or as a result of the use which has been made of it. It follows that the court must necessarily have regard to the impact of the accused sign on the proportion of consumers to whom the trade mark is particularly distinctive;(v) if, having regard to the perceptions and expectations of the average consumer, the court concludes that a significant proportion of the relevant public is likely to be confused such as to warrant the intervention of the court, then it may properly find infringement.”47.These, and the Specsaver principles, are those that I will apply to assess the average consumer and the likelihood of confusion.