Morley’s: Is the average consumer tired, hungry and intoxicated?

Copilot (prompt as Alt Text in image)

In a judgment handed down, appropriately, on Friday last week, the Court of Appeal dismissed an appeal by various proprietors of fast food outlets against a finding that they had infringed the trade mark rights of another, more famous, fast food franchise. The case is Morley's (Fast Foods) Ltd v Nanthakumar & Ors [2025] EWCA Civ 186. The judgment addresses the nature of the average consumer as well as an interpretation issue relating to a co-existence agreement. 

Background

Seven of the eight defendants were franchisees, operating under licence from the seventh defendant franchisor, KK. At first instance, the judge determined that the defendants had infringed various of the claimant’s trade mark rights by using signs including “Metro’s” and “MMM”. The signs in question were:

There was an earlier dispute between the parties, leading to a settlement agreement requiring the defendants to stop using their then brand “Mowley’s” and approving the use by Metro’s of the following sign.

The first instance decision

The judge at first instance found that all of the defendants the franchisees had infringed the Morley’s trade mark by using the Metro’s sign, that three of the defendants had infringed the TRIPLE M mark (two by using the MMM sign, and two by using the TRIPLE M sign), that KK was jointly and severally liable with the franchisees for the use of the Metro’s sign, and that KK was in breach of the settlement agreement.

Notably, the judge at first instance considered the average consumer, splitting the average consumer into two groups. Those groups were “children, young people, students and families, who buy at lunch, at teatime and into the evening and have low disposable income” and “late-night and early-morning revellers described by SS who are likely tired, hungry and a significant subset of which will be intoxicated”. The first class had a medium to low degree of attention; the latter unsurprisingly had a low degree of attention.

The appeal decision

Continuing his impressive output of appeal decisions, the lead judgment was delivered by Lord Justice Arnold. Arnold LJ recalled that the role of an appeal court is only to intervene where the judge below made findings that are rationally insupportable or wrong in law/principle.

On the average consumer points, Arnold LJ found that the judge had not fallen into error by focusing on actual consumers rather than the hypothetical construct of the average consumer. However, he did find that the first instance judge had erred by “salami slicing” the average consumer into subsets and by assessing the likelihood of confusion by reference to intoxicated consumers (who are, by definition, not reasonably well informed and circumspect). While that was an error, the first instance judge would have reached the same conclusion even if she had not made the mistake about the intoxicated and tired consumers.

The defendants challenged various other elements of the judgment as well. On the trade mark claims, those were:

• the visual and conceptual comparisons, which Arnold LJ found “was well within the bounds of rationality”
• The context of use of the Metro’s sign (i.e. above and in a similarly-styled fast food outlet) established a likelihood of confusion, which Arnold LJ rejected as not something that was properly argued and was a relevant factor for the judge to take into account;
• That the judge’s decision on the similarity of MMM to the TRIPLE-M mark was rationally unsupportable, which the judge said was a finding that was rationally supportable.

The defendants also sought to overturn the findings of breaches of the settlement agreement. It appears that the defendants sought to argue that the settlement agreement was relevant to the assessment of likelihood of confusion. This Kat takes that to mean that as some similar-ish branding was permitted, there is a lower likelihood of confusion, although it is not clear.

In any event, the defendants apparently accepted that the question is whether the settlement agreement gave KK a defence (it did not as the modifications to the agreed branding were not reasonable), and if so, whether that defence extended to the franchisees (which again it did not, as even if KK had a defence, the wording of the agreement did not cover the franchisees).

Takeaways (…)

While understandable when trying to assess the characteristics of the average consumer of particular goods/services, the first instance decision about the nature of the tired, hungry and intoxicated class of average consumers raised eyebrows among practitioners at the time. While true that consumers are sometimes … less attentive … the average consumer is a hypothetical construct and their characteristics are firmly established in law. The fact that some consumers might be more likely to be confused is not a part of that legal test. This is a sensible clarification, as there are many subsets of consumers that might be more likely to be confused than others, and legal certainty would be adversely affected by such ‘salami slicing’. 

It is also typically unnecessary to go so far anyway – if a judge considers that someone who is tired/intoxicated is likely to be confused, then there is quite likely a risk that a substantial proportion of the public will too. The tired/intoxicated consumer cannot be the bar by which infringement is set, even if in marginal cases there is damage caused to a trade mark owner by such consumers being confused. I might have occasionally mistaken Madri for Estrella; it does not mean that the two red pump clips are too close.