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

I remind myself that SS’s evidence was that the Claimant’s average customer was aged between 13 and 32, mostly school, college and university age and families with children, as they have less disposable income and Morley’s food is relatively low cost. He described a spike of activity across all Morley’s stores around lunch time, tea time, and then once again later at night and for some stores with a later licence, into the early hours. The night and particularly late night customers are often impaired by alcohol.

The Claimant’s case is that the average consumer is likely to be a member of the general public who will select a fried chicken restaurant mainly by viewing the shopfront or seeing an advert or a mention in other media, and is likely to pay a low degree of attention given the casual and relatively low-value nature of the purchasing decision.

The Defendants’ pleaded case is that the average consumer pays a ‘normal’ amount of attention. Mr Pearson made the fair point that “normal” means different things in different contexts, so that a normal degree of attention for a NASA astronaut needing to select some lenses would be extremely high. He submits that a normal degree of attention in this context, namely consumers selecting a fried chicken takeaway by the shopfront, possibly at night, or from an advert on a delivery service website, is a low level of attention, and that this is supported by SS’s evidence.

In closing, Ms Watkinson appeared to adopt SS’s evidence of the majority of the Claimant’s customers having the characteristics of the average consumer. She submits that such an average consumer would pay at least a medium degree of attention because they have less disposable income and so will be more careful how they spend it.