Case No. EWHC-941-(IPEC)

72.The test for infringement under both s.10(2) and s.10(3) is conducted through the eyes of a hypothetical person referred to as the average consumer. 73.The average consumer is a consumer of the goods or services in question. In this case, because the Match Marks are registered for on-line dating and introductions services generally (or information or consultancy services in relation thereto), the average consumer would be a member of the general public who is or may be interested in looking for a partner by means of an on-line dating or introduction service. 74.Where the parties differ is as regards the significance of Ms Bowhill’s argument that “practising Muslims are not the ‘typical user’ of dating services”. It was not entirely clear to me whether the suggestion here was that the average consumer of Match’s services could not be a practising Muslim or whether that was simply a factor to bear in mind when assessing issues such as that of the likelihood of confusion. Either way, for the reasons set out below, I do not accept this argument. Nor do I accept Ms Bowhill’s submission in closing that “the market for Muslim dating is a discrete and distinct one”, if by that she meant that no Muslim would use Match’s services.75.In the first place, I do not think that it is possible to put all practising Muslims into a single category and to say that they are “not the typical user of dating services”. To do so assumes a uniformity of views that does not exist. Mr Younas himself gave evidence regarding the huge diversity of views within Islam and this is reflected in the fact that Muzmatch itself asks users whether they are “very practising”, “moderately practising”, “practising” or “non-practising” Muslims and whether they “never”, “sometimes”, “usually” or “always” pray. Whilst it may be that some practising Muslims will not use dating services (indeed, as mentioned above, there seems to be a reasonably substantial number of Muslims who object even to Muzmatch’s Islamic-focused dating services on the basis that it is “haram”), other practising Muslims (as well as some non-practising Muslims) will use them. Further, whilst it is correct that (before its 2020 launch of Hawaya) Match had not specifically targeted the Muslim community, Mr Riviere’s evidence (which I accept) was that, in 2018 and 2019, Match had a reasonably large number of new registrants who identified themselves as Muslims when registering for its services. Although Match did not have records for the earlier years, I can see no reason why the position would have been any different then. Secondly, whilst it is true that Match’s services were not specifically targeted at Muslims, the fact is that they were not specifically targeted at any particular class or type of person (other than someone who is looking for a partner). The targeting of its services could reach (and in Mr Younas’ case clearly did reach) Muslims as well as non-Muslims. Accordingly, I find that the average consumer might be of any race, creed, age, sex or background.76.As to the characteristics of the average consumer, it was common ground that the average consumer is someone who is reasonably well informed, reasonably circumspect and observant, albeit someone who rarely has the chance to make a direct comparison between the marks in issue and so has to run the risk of imperfect recollection. Ms Bowhill submitted (and I accept) that the level of attention paid by the average consumer of dating services is likely to be higher than for normal consumer items, not least because users of dating services have to provide a significant amount of personal (even highly personal) information and, as Mr Lubot accepted, need to trust the platform to which they are providing that information.