Relevant public

The relevant public is the group of persons by reference to whom the distinctive character of a trade mark, the similarity of signs and the likelihood of confusion are assessed. It consists of the consumers or professional users of the goods or services at issue, within the territory of protection. The notion, developed by the Court of Justice of the European Union on the basis of the Trade Marks Directive and Regulation (EU) 2017/1001, is binding on INPI, the EUIPO and the French courts.

The average consumer

The relevant public is embodied by the average consumer of the category of goods concerned, who is reasonably well informed and reasonably observant and circumspect. This is a standard and not a real person, so the court is not required to carry out a survey, although it may take surveys into account. That consumer rarely has the chance to make a direct comparison between the trade marks and must rely on the imperfect picture of them kept in mind. The consumer normally perceives a trade mark as a whole and does not proceed to analyse its various details, which is why the overall impression prevails.

Variations in the level of attention

The level of attention varies with the nature of the goods or services. It is low for inexpensive everyday consumer goods, average for ordinary goods, and high for expensive, rare or technical goods, such as vehicles, financial services or prescription medicines. Where the goods are aimed at both the general public and professionals, the assessment generally takes the public with the lowest level of attention. For pharmaceutical products, the public also includes healthcare professionals, whose attention is higher, without this ruling out a likelihood of confusion for the end consumer.

Territory and language

The relevant public is assessed within the territory of protection. For a French trade mark, this is the French public, which means that the understanding of a foreign term, and therefore its descriptive character or conceptual similarity, is assessed by reference to the knowledge the French public has of it. For a European Union trade mark, the relevant public is that of the Union, but an absolute ground for refusal existing in only part of the Union is enough to bar registration, and a likelihood of confusion confined to part of the territory is enough to sustain an opposition. Defining the public is therefore the first step of any analysis, since it determines how the signs are perceived and how the dispute is decided.

Key points

The relevant public is the average consumer of the goods at issue, reasonably well informed and reasonably observant, whose attention varies with the price and technical nature of the goods, and whose perception is measured within the territory of protection. It is a legal standard, not an opinion poll. In any brief or analysis, this public should be defined first, and only then should the signs be compared through its eyes.

---

This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats is a patent litigation firm. Matters outside that field, such as trade marks, designs, copyright and IT contracts, are handled by practitioners the firm works with regularly, and by the firm itself when they arise in a patent dispute.

Intellectual property attorney · Tell us about your situation