Claim No: IP-2022-000066 - [2024] EWHC 1369 (IPEC)

I accept the Claimant’s submission that, per Floyd J (as he then was) at [31] of London Taxi Corporation Ltd v Frazer-Nash Research Ltd [2017] EWCA Civ 1729, “…the notion of an average consumer requires the court to consider any relevant class of consumer, and not to average them.”

In my judgment there are two classes of average consumer to consider in this case. One is the class made up of children, young people, students and families, who buy at lunch, at teatime and into the evening and have low disposable income. They will choose a chicken fast-food shop by convenience of location and shopfront, or from an advert on a delivery website, with a medium to low degree of attention. I do not accept the Defendants’ submission that the fact that they are low income means they will pay greater attention, as they will be selecting the shop once they have taken the decision that they can afford and will buy such a meal. There is no evidence before me that there is any significant difference in price between comparable meals from Metro’s and Morley’s or other such fast-food outlets.

The second class of average consumer is the late-night and early-morning revellers described by SS who are likely tired, hungry and a significant subset of which will be intoxicated. They will also choose by convenience of location, shopfront and what is open late, and in my judgment will pay a low degree of attention.

It is enough for one of those classes of average consumer to be confused for there to be a likelihood of confusion in relation to that class.