Who is the ‘average consumer’ when a product/service is aimed at both specialized and everyday consumers?

What is the scope of assessment of ‘the average consumer’ in proceedings concerning the distinctive character of a sign? What could be said in relation to the public’s attention when it comes to advertising slogans/messages? Is it possible for the ‘average consumer’ to exert both a high and low level of attention if the goods and/or services in question are aimed at a specific public, while also being, on occasion, purchased by uninformed consumers who are part of the general public?

In a decision delivered last month, the General Court (GC) considered all the above. It also held that also a slogan can be capable of indicating the commercial origin of the goods or services in question, when that sign is not merely an ordinary advertising message, but rather possesses a certain degree of originality or resonance.

Background

With an application filed in August 2018, the Applicant – Teva Pharmaceutical Industries – sought to register ‘Weniger Migräne. Mehr vom Leben’ (Eng: Less migraines. More of life) as an EU trade mark (EUTM). Registration was sought for goods in Class 16 (printed materials relating to the treatment of migraines) and services in Class 44 (providing information relating to the treatment of migraines).

In February 2019, the EUIPO examiner refused registration of the mark, on the ground that the sign would lack distinctive character under Article 7(1)(b) of the EU Trade Mark Regulation (EUTMR).

Teva appealed the decision to the EUIPO Fifth Board of Appeal, which subsequently dismissed the action on the same basis as the EUIPO examiner: the sign at issue would be perceived by the relevant public as a promotional slogan relating to the quality of the goods and services in question, thus lacking distinctiveness.

Teva appealed to the GC requesting the annulment of the Board’s decision. It also claimed infringement of Article 7(1)(b) of the EUTMR and of the principle of equal treatment.

The present analysis only concerns the distinctive character of the sign applied for by Teva.

The General Court’s considerations

A mark has a distinctive character when it serves to identify the goods or services in respect of which registration is applied for as originating from a particular undertaking and thus to distinguish those goods or services from those of other undertakings (Smart Technologies v OHIM, C‑311/11 P).

The distinctive character of a sign can only be assessed by reference to the goods or services in respect of which registration is sought and to the relevant public’s perception of said sign.

The public’s perception of the goods

In relation to the public’s perception, the Board’s conclusion had been that the goods and services in question are only used whenever there is a therapeutic need (treating migraines). It is then that the general public takes a great interest in those goods and services.

Although the Board found that the goods and services in question relate to migraines, it did not consider that those goods and services would be themselves migraine treatments. It follows from the actual description of those goods and services that they relate to the treatment of migraines.

The ‘average consumer’

Having established that the goods and services in question merely concern the treatment of migraines, the GC went on to recall that the ‘average consumer’ cannot be understood as being only the consumer who is part of the ‘general public’: rather, it is the consumer who is part of the public specifically targeted by the goods and services in question. Therefore, the ‘average consumer’ may be a professional whose degree of specialisation is high, if the goods and services in questions are aimed specifically at such a public, even if it is conceivable that those goods and services are also sometimes purchased by uninformed consumers who are part of the general public.

Although the Applicant submitted that the goods and services in question cannot, as such, treat migraines, it nevertheless acknowledged that they may provide guidance to the relevant public to help choose an appropriate treatment for migraines.

It follows from settled case law that marks consisting of promotional slogans – to purchase the goods or services covered by those marks convey by definition – can still be capable of indicating the commercial origin of the goods or services in question. This can be the case, for instance, where those marks are not merely ordinary advertising messages, but also possess a certain originality or resonance, requiring at least some interpretation by the relevant public, or setting off a cognitive process in the minds of that public (Audi v OHIM, C‑398/08 P). 

In the present case, the phrases ‘Weniger Migräne’ and ‘Mehr vom Leben’ were not considered particularly unusual in terms of the rules of German syntax, grammar, phonetics or semantics. They convey a simple, clear and unequivocal message to the relevant public, which is not likely to confer any particular originality or resonance, to require at least some interpretation or to set off a cognitive process.

Since the mark encourages the relevant public to discover the goods and services in question by promising to improve daily life, it is clear that the mark has a promotional character and is therefore not capable of indicating the commercial origin of those goods and services.

Comment

This case is as useful reminder of how to assess distinctiveness of slogans and determine who the sometimes mysterious ‘average consumer’ is.

With regard to the latter, the GC confirmed that the ‘average consumer’ cannot be understood as only the consumer who is part of the ‘general public’, but also includes the consumer who is part of the public specifically targeted by the goods and services in question.

In relation to the former, the GC clarified that a sign can still be capable of indicating the commercial origin of the goods or services in question, when that sign is not merely an ordinary advertising message, but also possesses a certain degree of originality or resonance. In this sense, signs that consist of banal promises in relation to the goods and/or services in question have a promotional character and are therefore not capable of performing the basic function of a trade mark.