Who is the reasonable person in trademark infringement cases? When the similarity of the marks is being determined, the Trademark Trial and Appeal Board will sometimes mention that when comparing the marks “the proper test is not a side-by-side comparison of the marks, but instead ‘whether the marks are sufficiently similar in terms of their commercial impression’ such that persons who encounter the marks would be likely to assume a connection between the parties.” The Board will then go on to say “the emphasis must be on the recollection of the average purchaser who normally retains a general, rather than specific, impression of trademarks.” If you are a defendant in a case before the Trademark Trial and Appeal Board and see these paragraphs, it is probably time to brace yourself for a decision that is not going in your favor (that’s assuming you didn’t skip to the end of the decision the minute you received it).
Who is this “average purchaser” that the Trademark Trial and Appeal Board references? In one of its most recent decisions In re Spy Tec International, Inc., the Board never defines who this person is and we must assume that the applicant did not offer any evidence to demonstrate who is this person. The “average purchaser” is a concept that is critical to any trademark dispute, yet more often than not who this person is is assumed without any evidence identifying who is the average purchaser of particular goods and services.
Laura A. Heymann of the College of William & Mary Law School discussed this “reasonable person” or “average purchaser.” Although not of much comfort to those of us dealing with trademarks on a daily basis, Ms. Heymann concludes that the “reasonable person” or “average purchaser” is the whoever the judge decides it is, which is usually a product of the judges own bias. The Trademark Trial Appeal Board has said that the “average purchaser” is the least sophisticated of a particular class of consumers.