Case No. EWHC-3296-(IPEC)

15. Second, many of the trade mark issues dealt with below require the court to assess the facts through the eye of the “average consumer”. This is taken to be a person who is a consumer of the relevant goods and who is both (i) familiar with the trade mark and (ii) exposed to, and likely to rely upon, the sign. In effect, it “ includes any class of consumer to whom the guarantee of origin is directed and who would be likely to rely on it, for example in making a decision to buy or use the goods ….” (see Sky plc & Ors v SkyKick UK Ltd & Anor [2018] EWHC 155 at [274]-[275]). The average consumer is deemed to be reasonably well informed and reasonably circumspect and observant but the level of attention and care displayed by the average consumer may vary depending on the nature of the goods or services in question and how they acquire them (see Case C-342/97 Lloyd Schufabrik Meyer v Kliysen Handel [1999] ETMR 690 at [26]). 16. In my judgment, the average consumer in the present case could be either a lay consumer (or end user) of the relevant products (essentially a horse rider) or an equestrian retailer which buys such products to be sold on to lay consumers. A lay consumer will exercise an average degree of attention, whereas a retailer is likely to exercise a higher degree of attention.