Fashion designs and brands: The role of the informed user and the average consumer

摘要

The notions of the informed user and average consumer occupy centre stage in design and trade marks disputes. The current European Union legal framework exposes a tension between these notions as legal constructs informed by normative objectives, and the need to connect them with the business reality of design and trade mark practice. This article investigates how litigation concerning fashion design and brands addresses this tension and shapes the definition and application of legal tests for the informed user and the average consumer. It analyses key criteria that determine who these notional persons are, and how those criteria are applied when performing assessments that combine abstract legal standards with information acquired from the experience that real users and consumers make of fashion designs and brands.