[2025] EWHC 1722 (IPEC)

The likelihood of confusion must be assessed from the perspective of the notional average consumer of the relevant goods and/or services, who is deemed to be 'reasonably well informed and reasonably observant and circumspect'. The characteristics and role of the average consumer were summarised by Arnold LJ in Lidl Great Britain Limited v Tesco Stores Limited [2024] EWCA Civ 262 at [16] - [20], reinforced in Morley's. The average consumer 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”: London Taxi Corpn Ltd v Frazer-Nash Research Ltd [2017] EWCA Civ 1729; [2018] FSR 7 per Floyd LJ, at [34]. As Arnold LJ said in Morley’s at [18]:

“The purpose of the exercise in a case such as the present is to assess how the average consumer would select the relevant goods and services and the level of attention which would be paid by the average consumer. “

The Claimant submitted that its customers were members of the general public, who might use its services e.g. for effecting money transfers, as well as business customers of various sizes. It said that both individuals and businesses might overlap with the average consumer of the Defendants’ goods/services. I think that the Defendants broadly agreed, as they identified their own consumers as the carriers, main contractors, and sub-contractors, who include the drivers. The instances of alleged confusion showed that some people were customers of both sides.