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The Early Beginnings of the Average Consumer Pre Sabel

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The Average Consumer in Confusion-based Disputes in European Trademark Law and Similar Fictions

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Abstract

Since Cassis de Dijon from 1979, the Court of Justice issued many decisions dealing with consumer perception vis-à-vis free movement of goods, and how well consumers can look after themselves in the marketplace. These decisions culminated with the Court of Justice setting out the “modern” average consumer in European trademark law in Sabel in 1997. These early decisions show the inconsistent development of the average consumer and its nature relevant to the analysis in this book.

Before Sabel, particularly the Court of Justice used the term average consumer inconsistently, partly caused by the different language versions of its decisions. This chapter contests the finding by some that the Court of Justice first referred to the average consumer in Germany v. Commission 1992 or other decisions, since the first reference to the average consumer was found in Van Bennekom from 1983. On an individual level, Mancini and Gulmann could have significantly impacted the development of the “modern” average consumer due to their role as Advocates General and judges in some of the earlier decisions and as judges in Sabel and Lloyd.

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Notes

  1. 1.

    Davis has referred to Gut Springenheide as the starting point of the Court of Justice of the “hypothetical average consumer” but argues in a footnote that its origin is found in Mars. Davis, Jennifer, ‘Locating the Average Consumer: His Judicial Origins, Intellectual Influences and Current Role in European Trade Mark Law’, Intellectual Property Quarterly, no. 2, (2005), pp. 183, p. 185-186, including footnote 12 of the text. Similarly, Mak has argued that the development of the average consumer “culminated” in Gut Springenheide standing on the shoulder of a “further set of cases.” Mak, Vanessa, ‘Standards of Protection: In Search of the ‘Average Consumer’ of EU Law in the Proposal for a Consumer Rights Directive’, European Review of Private Law, vol. 19/no. 1, (2011), pp. 25, Mak, Vanessa, ‘The Consumer in European Regulatory Private Law’, in Leczykiewicz, Dorota, and Weatherill, Stephen eds., The Images of the Consumer in EU Law: Legislation, Free Movement and Competition Law (1st edn, Hart, 2016), 381, p. 384-386. See also Incardona, Rossella, and Poncibò, Cristina, ‘The Average Consumer, the Unfair Commercial Practices Directive, and the Cognitive Revolution’, Journal of Consumer Policy, vol. 30/no. 1, (2007), pp. 21, p. 22, Hannerstig, Niclas, ‘The Average Consumer – Legal Fiction or Reality? A Comparative Study between European and American Trademark Law’, LUP Student Papers (2011), p. 36, Dinwoodie, Graeme, and Gangjee, Dev, ‘The Image of the Consumer in EU Trade Mark Law’, in Leczykiewicz, Dorota, and Weatherill, Stephen eds., The Images of the Consumer in EU Law: Legislation, Free Movement and Competition Law (1st edn, Hart, 2016), 339, p. 366, Wilhelmsson, Thomas, ‘The Average European Consumer: A Legal Fiction?’, in Wilhelmsson, Thomas, Paunio, Elina and Pohjolainen, Annika eds., Private Law and the Many Cultures of Europe (1st edn, Kluwer Law International, 2007), 243, p. 244.

  2. 2.

    Gut Springenheide and Tusky, Case C-210/96, [1998] ECR I-4657, para 37.

  3. 3.

    Art. 30 of the EEC Treaty.

  4. 4.

    Estée Lauder, Case C-220/98, [1999] ECR I-117, (opinion of AG Fennelly), para 25. (italics in the latter quote added).

  5. 5.

    See among others, Craig, Paul, and Búrca, Gráinne de, ‘EU Law: Text, Cases, and Materials’, (6th edn, Oxford University Press, 2015), chapter 19, Weatherill, Stephen, and Beaumont, Paul, ‘EU Law: The Essential Guide to the Legal Workings of the European Union’, (3rd edn, Penguin, 1999), Arnull, Anthony, ‘Judicial Review in the European Union’, 376, chapter 15, Tridimas, Takis, ‘Dialogue with National Courts: Dialogue, Cooperation and Instability’, 403, chapter 16, Craig, Paul, ‘Accountability’, 431, chapter 17, Armstrong, Kenneth, ‘Governing Goods: Content and Context’, 508, chapter 20, all four in Arnull, Anthony and Damian Chalmers eds., The Oxford Handbook of European Union Law (1st edn, Oxford University Press, 2015) and Barnard, Catherine, ‘The Substantive Law of the EU: The Four Freedoms’, (5th edn, Oxford University Press, 2016), chapters 2, 4, 5 and 6.

  6. 6.

    Art. 34 of the TFEU. MEQRs is an abbreviation found in legal literature of “measures equivalent to a quantitative restriction.” See among others, Horspool, Margot, Humphreys, Matthew, and Wells-Greco, Michael, ‘European Union Law’, (10th edn, Oxford University Press, 2018), p. 314-321.

  7. 7.

    Dassonville, Case 8/74, [1974] ECR 837, para 5. See Weatherill, Stephen, and Beaumont, Paul, ‘EU Law: The Essential Guide to the Legal Workings of the European Union’, (3rd edn, Penguin, 1999), p. 566 and Dashwood, Alan, ‘Wyatt and Dashwood’s European Union Law’, (6th edn, Hart, 2011), p. 410-411.

  8. 8.

    Dassonville, Case 8/74, [1974] ECR 837, para 6.

  9. 9.

    Craig, Paul, and Búrca, Gráinne de, ‘EU Law: Text, Cases, and Materials’, (6th edn, Oxford University Press, 2015), p. 668.

  10. 10.

    Weatherill, Stephen, and Beaumont, Paul, ‘EU Law: The Essential Guide to the Legal Workings of the European Union’, (3rd edn, Penguin, 1999), p. 566.

  11. 11.

    Keck Mithouard, Joined Cases C-267/91 and C-268/91, [1993] ECR I-6097, para 15 referred to in Verband Sozialer Wettbewerb v. Clinique Laboratoires, Case C-315/92, [1994] ECR I-317, para 13.

  12. 12.

    Keck Mithouard, Joined Cases C-267/91 and C-268/91, [1993] ECR I-6097, para 16.

  13. 13.

    Weatherill, Stephen, and Beaumont, Paul, ‘EU Law: The Essential Guide to the Legal Workings of the European Union’, (3rd edn, Penguin, 1999), p. 612. See further on the implications of Keck Mithouard, ibid, p. 612-619, Dashwood, Alan, ‘Wyatt and Dashwood’s European Union Law’, (6th edn, Hart, 2011), p. 418-421 and Arnull, Anthony, ‘The European Union and its Court of Justice’, (2nd edn, Oxford University Press, 2006), 427-441.

  14. 14.

    Cf. Art. 36, of the TFEU.

  15. 15.

    Rewe-Zentral AG v. Bundesmonopolverwaltung für Branntwein (Cassis de Dijon), Case 120/78, [1979] ECR 649, para 8 (italics added). For a further analysis of art. 36 and the “mandatory requirements” see among others, Barnard, Catherine, ‘The Substantive Law of the EU: The Four Freedoms’, (5th edn, Oxford University Press, 2016), chapter 6 and Craig, Paul, and Búrca, Gráinne de, ‘EU Law: Text, Cases, and Materials’, (6th edn, Oxford University Press, 2015), p. 695-711.

  16. 16.

    Weatherill, Stephen, and Beaumont, Paul, ‘EU Law: The Essential Guide to the Legal Workings of the European Union’, (3rd edn, Penguin, 1999), p. 581 and p. 588-589.

  17. 17.

    For an overview of the different taxonomies of art. 34 of the TFEU on MEQRs, see p. 74 and 89 and on different selling arrangements, see p. 124, 130, 136 and 145 (this page highlights the taxonomy the UCPD vis-à-vis the TFEU) of Barnard, Catherine, ‘The Substantive Law of the EU: The Four Freedoms’, (5th edn, Oxford University Press, 2016). See also Armstrong, Kenneth, ‘Governing Goods: Content and Context’, in Arnull, Anthony and Damian Chalmers eds., The Oxford Handbook of European Union Law (1st edn, Oxford University Press, 2015), 508, chapter 20.

  18. 18.

    I.e., art. 49 of the TFEU Pre-Lisbon. What constitute services is defined in art. 57 of the TFEU (art. 50 of the TFEU Pre-Lisbon). See also art. 2(1) under directive (EC) No 2006/123 of 12 December 2006 on services of the Internal Market (the “Service Directive”). See on the definition of “service”, Barnard, Catherine, ‘The Substantive Law of the EU: The Four Freedoms’, (5th edn, Oxford University Press, 2016), p. 428.

  19. 19.

    It has been ruled by the Court of Justice that the freedom to provide services is not secondary to the freedom of movement of goods under art. 34 of the TFEU. See e.g., Omega v. Oberbürgermeisterin, Case C-36/02, [2004] ECR I-9609, para 26, including the case law referred to here. Certain derogations to the free movement of services may be allowed under the Service Directive “for reasons of public policy, public security, public health or the protection of the environment” (cf. art. 16(3) of the Service Directive) and on a “case-by-case” derogation may by way of “measures relating to the safety of services” (cf. art. 18(1) of the Service Directive). For an account of the Service Directive in a trademark context, see Elsmore, Matthew J., ‘Intangible Assets for Intangible Deliverables: Trade Marks at Your Service’, Journal of Intellectual Property Law & Practice, vol. 3/no. 9, (2008), pp. 580, in particular p. 585-586.

  20. 20.

    Leczykiewicz, Dorota and Weatherill, Stephen, ‘The Images of the Consumer in EU Law’, in Leczykiewicz, Dorota and Weatherill, Stephen eds., The Images of the Consumer in EU Law: Legislation, Free Movement and Competition Law (1st edn, Hart, 2016), 1, p. 3.

  21. 21.

    If the German law did not comply with art. 30 of the EEC Treaty (art. 34 of the TFEU), it was a question of if it was encompassed by the exceptions set out in art. 36 of the EEC Treaty and TFEU.

  22. 22.

    Cassis de Dijon, Case 120/78, [1979] ECR 649, para 8.

  23. 23.

    Ibid, para 14.

  24. 24.

    Ibid, para 11.

  25. 25.

    Ibid, para 13 (italics added).

  26. 26.

    Therefore, the German law constituted “an obstacle to trade which is incompatible with the provisions of Article 30 of the Treaty [TFEU art. 34].” Ibid, para 14.

  27. 27.

    Proportionate measures are measures “necessary in order to satisfy mandatory requirements relating in particular to the effectiveness of fiscal supervision, the protection of public health, the fairness of commercial transactions and the defence of the consumer.” Ibid, para 8.

  28. 28.

    For an explanation of the expression “moron” as a reference to the phrase “moron in a hurry,” see e.g. Chap. 6, Sect. 6.6.2, footnote 216.

  29. 29.

    Advocate General Capotorti giving the opinion in Cassis de Dijon similarly held that “the idea of this widespread, if not general, incapacity on the part of the consumer seems to me to doom to failure any effort to protect him, unless it be to impose upon him a single national product the composition of which is constant and is rigorously controlled.” Rewe-Zentral AG v. Bundesmonopolverwaltung für Branntwein (Cassis de Dijon), Case 120/78, [1979] ECR 649, (opinion of AG Capotorti), p. 673.

  30. 30.

    Weatherill, Stephen, ‘EU Consumer Law and Policy’, (2nd edn, Edward Elgar, 2013), p. 44. See also Howells, Geraint G., ‘Europe’s (Lack of) Vision on Consumer Protection: A Case of Rhetoric Hiding Substance?’, in Leczykiewicz, Dorota, and Weatherill, Stephen eds., The Images of the Consumer in EU Law: Legislation, Free Movement and Competition Law (1st edn, Hart, 2016), 431, p. 435 and Weatherill, Stephen, and Beaumont, Paul, ‘EU Law: The Essential Guide to the Legal Workings of the European Union’, (3rd edn, Penguin, 1999), p. 554-555.

  31. 31.

    Also, Weatherill has pointed out that the decision illustrates the distinction between positive harmonisation conducted by the EU legislature and negative harmonisation conducted by the Court of Justice. Weatherill, Stephen, ‘EU Consumer Law and Policy’, (2nd edn, Edward Elgar, 2013), p. 44-45.

  32. 32.

    Ibid, p. 45.

  33. 33.

    Respectively, Drei Glocken, Case 407/85, [1988] ECR 4233, GB-INNO, Case C-362/88, [1990] ECR I-667 and Schutzverband v. Yves Rocher, Case C-126/91, [1993] ECR I-2361.

  34. 34.

    See the general discussion on harmonisation in Chap. 4, Sect. 4.2.

  35. 35.

    Buet v. Ministère Public is not dealt with separately below. A French salesman of English language teaching material conducted doorstep selling in France. This practice was prohibited under French law. The Court of Justice interpreted the directive (EEC) No. 85/577 of 20 December 1985 on protecting consumers in respect of contracts negotiated away from business premises (the so-called “doorstep selling directive”) as allowing member states to introduce requirements more favourable to consumers. Based on this, the court decided that the French legislation was “not incompatible with Article 30 of the Treaty.” Buet v. Ministère public, Case 382/87, [1989] ECR 1235, para 17. The doorstep directive subsequently underwent maximum harmonisation through directive 2011/83 of 25 October 2011.

  36. 36.

    Howells, Geraint G., ‘Europe’s (Lack of) Vision on Consumer Protection: A Case of Rhetoric Hiding Substance?’, in Leczykiewicz, Dorota, and Weatherill, Stephen eds., The Images of the Consumer in EU Law: Legislation, Free Movement and Competition Law (1st edn, Hart, 2016), 431, p. 435.

  37. 37.

    Drei Glocken, Case 407/85, [1988] ECR 4233.

  38. 38.

    See Davies, Gareth, ‘Internal Market Adjudication and the Quality of Life in Europe’, Columbia Journal of European Union Law, vol. 21/no. 2, (2014-2015), pp. 289, p. 291.

  39. 39.

    Drei Glocken, Case 407/85, [1988] ECR 4233, paras 9 and 11.

  40. 40.

    Ibid, paras 10-11.

  41. 41.

    Drei Glocken, Case 407/85, [1988] ECR 4233, (opinion of AG Mancini), p. 4272.

  42. 42.

    Ibid, p. 4274.

  43. 43.

    Ibid, p. 4269 (italics in the first quote added).

  44. 44.

    Drei Glocken, Case 407/85, [1988] ECR 4233, para 14.

  45. 45.

    Ibid, paras 15-16.

  46. 46.

    Ibid, para 19.

  47. 47.

    Ibid, paras 22 and 28.

  48. 48.

    Commission v. Germany (“German Beer Purity”), Case 178/84, [1987] ECR 1227.

  49. 49.

    Ibid, para 32 (italics added).

  50. 50.

    Ibid. For other decisions on similar standards, see Davies, Gareth, ‘Internal Market Adjudication and the Quality of Life in Europe’, Columbia Journal of European Union Law, vol. 21/no. 2, (2014-2015), pp. 289, p. 294, including footnote 28 of that text.

  51. 51.

    Davies, Gareth, ‘Consumer Protection as an Obstacle to the Free Movement of Goods’, ERA Forum, vol. 4/no. 3, (2003), pp. 55, p. 58.

  52. 52.

    One of the policy statements of the Commission in the communication is: “From goods to services and information and communication technologies (ICT), standards have proven to be a flexible way of raising quality and safety, improving transparency and interoperability, reducing costs and opening up markets for businesses, especially SMEs. Standards benefit consumers, companies and society at large.” Commission, EP, Council, EESC and the Committee of the Regions Communication on a Standardisation package. European Standards for the 21st Century of 1 June 2016, COM(2016) 358 final, p. 2.

  53. 53.

    Among others, Kenyon and Sen have defined what they denote as a “user-based” quality “from a perceptual perspective” as: “quality is in the eye of the beholder. As individuals, we are all unique because of our genetic predispositions, cultural and social backgrounds, and our experiences.” Therefore, “each one of us can best be satisfied with a product or service that deliver value based upon one’s own particular preferences.” Kenyon, George N., and Sen, Kabir C., ‘The Perception of Quality: Mapping Product and Service Quality to Consumer Perceptions’, (1st edn, Springer, 2015), p. 3.

  54. 54.

    Davies, Gareth, ‘Internal Market Adjudication and the Quality of Life in Europe’, Columbia Journal of European Union Law, vol. 21/no. 2, (2014-2015), pp. 289, p. 309.

  55. 55.

    Council Directive of 26 January 1965 on the approximation of provisions laid down by law, regulation or administrative action relating to proprietary medicinal products (65/65/EEC), [1965] OJ 369/65. It should be mentioned that the Medical Product Directive 1965 was codified in EP and Council Directive 2001/83/EC of 6 November 2001 on the Community code relating to medicinal products for human use, [2001] OJ L311/67.

  56. 56.

    See Van Bennekom, Case 227/82, [1983] ECR 3883, para 14. An example of the redundancy of art. 36 of the TFEU is illustrated by Commission v. Germany 1992 referred to below where the Court of Justice stated: “At the present stage of development of Community law, it is difficult to avoid the continued existence, for the time being and, doubtless, so long as harmonization of the measures necessary to ensure the protection of health is not more complete, of differences in the classification of products as between Member States.” Commission v. Germany 1992, Case C-290/90, [1992] ECR I-3317, para 16. See similarly Monteil, Case C-60/89, [1991] ECR I-1547, paras 27-28 and Delattre, Case C-369/88, [1991] ECR I-1487, paras 28-29, both referred to subsequently in this section.

  57. 57.

    The disputed products were certain “vitamin and multi-vitamin preparations which were in pharmaceutical form (tablets, pills and capsules) but were unaccompanied by any indication or recommendation” as required by the relevant law of the Netherlands. Van Bennekom, Case 227/82, [1983] ECR 3883, p. 3886.

  58. 58.

    Ibid, para 16.

  59. 59.

    Ibid, para 17 (italics in the first quote are added).

  60. 60.

    It is assumed that “will-informed” is a misspelling of “well-informed,” which is nowadays an accepted characteristic of the average consumer.

  61. 61.

    Ibid, para 18 (italics added).

  62. 62.

    Cf. art. 169 of the EEC Treaty. I.e. since the Commission was of the opinion that Germany had not complied with its obligations under the treaty.

  63. 63.

    The 1965 Directive on Medicinal Products. The eye lotion could for instance be used for the removal of injurious substances from the eye through a rinsing process.

  64. 64.

    The Court of Justice may sit in a Grand Chamber consisting of 13 judges, “presided over by the President of the Court. The Presidents of the chambers of five Judges and other Judges appointed in accordance with the conditions laid down in the Rules of Procedure,” cf. art. 16(2) of the Statute of the CJEU. That the Court of Justice sits in the Grand Chamber illustrates either that it has been requested by “a Member State or an institution of the Union,” cf. art. 16(3) of the Statute of the CJEU. Also, if the case before the Court of Justice “is of exceptional importance, the Court may decide, after hearing the Advocate General, to refer the case to the full Court,” cf. art. 16(5) of the Statute of the CJEU. See also Bobek, Michal, ‘The Court of Justice of the European Union’, in Arnull, Anthony and Chalmers, Damian eds., The Oxford Handbook of European Union Law (1st edn, Oxford University Press, 2015), 153, p. 156-157.

  65. 65.

    Commission v. Germany 1992, Case C-290/90, [1992] ECR I-3317, para 15.

  66. 66.

    Ibid, para 16.

  67. 67.

    Ibid, para 11 (italics added).

  68. 68.

    Ibid, para 17. Reference here was made to Upjohn, Case C-112/89, [1991] ECR I-1703, para 23. In Upjohn the main question was whether a hair restorer was a proprietary medical product under the 1965 Medical Product Directive, and/or a “cosmetic product” under directive (EEC) No. 76/768 of 27 July 1976 on approximation of the laws of the Member States relating to cosmetic products. EP and Council Regulation (EC) No 1223/2009 of 30 November 2009 on cosmetic products, [2009] OJ L342/59, cf. recital 69 of the regulation.

  69. 69.

    Upjohn, Case C-112/89, [1991] ECR I-1703, (opinion of AG Lenz), para 63.

  70. 70.

    Commission v. Germany 1992, Case C-290/90, [1992] (rapport for the hearing), ECR I-3317, p. 3324.

  71. 71.

    Ibid, p. 3325 (italics added). Besides Germany, the Commission also referred to the relevance of the average consumer holding that “it must not be supposed that the ‘average consumer’ sees the eye-lotions as medicinal products or that he is entitled to expect that they are.” Ibid.

  72. 72.

    Alternatively, directive (EC) No 2001/83 among other directives on medical products codifying the 1965 Medical Product Directive.

  73. 73.

    Delattre, Case C-369/88, [1991] ECR I-1487, paras 38-40 and 58.

  74. 74.

    Monteil, Case C-60/89, [1991] ECR I-1547, paras 23-24.

  75. 75.

    Commission v. Germany 2007, Case C-319/05, [2007] ECR I-9811, para 46.

  76. 76.

    Reich, Norbert, Micklitz, Hans-W., and Rott, Peter, ‘European Consumer Law’, (2nd edn, Intersentia, 2014), p. 12.

  77. 77.

    Micklitz, Hans-W., ‘The Consumer: Marketised, Fragmentised, Constitutionalised’, in Leczykiewicz, Dorota, and Weatherill, Stephen eds., The Images of the Consumer in EU Law: Legislation, Free Movement and Competition Law (1st edn, Hart, 2016), 21, p. 28.

  78. 78.

    In addition, the decisions referring to these two decisions.

  79. 79.

    Weatherill and Beaumont 1999, p. 588. As mentioned earlier, reference to “mandatory requirements” were first made by the Court of Justice in Cassis de Dijon, Case 120/78, [1979] ECR 649, para 8.

  80. 80.

    These findings relate to the fact/law divide. See for instance, Chap. 11, Sect. 11.1.

  81. 81.

    Weatherill, Stephen, and Beaumont, Paul, ‘EU Law: The Essential Guide to the Legal Workings of the European Union’, (3rd edn, Penguin, 1999), p. 583.

  82. 82.

    Ibid, p. 584.

  83. 83.

    Mak, Vanessa, ‘The Consumer in European Regulatory Private Law’, in Leczykiewicz, Dorota, and Weatherill, Stephen eds., The Images of the Consumer in EU Law: Legislation, Free Movement and Competition Law (1st edn, Hart, 2016), 381, p. 386 (italics added). The finding by Mak also relates to the “man skilled in the art” (“person skilled in the art”) from patent law.

  84. 84.

    Vries, Sybe Alexander de, ‘The Court of Justice’s ‘Paradigm Consumer’ in EU Free Movement Law’, in Leczykiewicz, Dorota, and Weatherill, Stephen eds., The Images of the Consumer in EU Law: Legislation, Free Movement and Competition Law (1st edn, Hart, 2016), 401, p. 408.

  85. 85.

    GB-INNO, Case C-362/88, [1990] ECR I-667.

  86. 86.

    Ibid, para 2.

  87. 87.

    Ibid, para 13.

  88. 88.

    More specifically confusion “between special sales and half-yearly clearance sales the timing and duration of which is restricted under Luxembourg legislation.” “CCL” is an abbreviation of “Confédération du Commerce Luxembourgeois.” Ibid, para 11.

  89. 89.

    Ibid, para 12 (italics added).

  90. 90.

    Ibid, para 14.

  91. 91.

    Ibid, para 16.

  92. 92.

    Ibid, paras 18 and 21.

  93. 93.

    Reich, Norbert, Micklitz, Hans-W., and Rott, Peter, ‘European Consumer Law’, (2nd edn, Intersentia, 2014), p. 101. Although Reich et al have not referred to Yves Rocher, this decision also indicates that true information cannot be withheld from the consumer. See also Engelbrekt, Antonina Bakardjieva, ‘Fair Trading Law in Flux? National Legacies, Institutional Choice and the Process of Europeanisation’, (1st edn, Stockholm University, 2003), p. 439, Howells, Geraint G., and Weatherill, Stephen, ‘Consumer Protection Law’, (2nd edn, Routledge, 2005), p. 111-113.

  94. 94.

    The French parent company of the German subsidiary of Yves Rocher sold via mail order its products in Germany. In connection with the sale, Yves Rocher circulated a catalogue where its previous prices were compared with its new prices. This price comparison was prohibited under German unfair competition law since it was “eye catching.” The Court of Justice based its decision partly on its assessment in GB Inno. Schutzverband v. Yves Rocher, Case C-126/91, [1993] ECR I-2361, paras 10 and 12. The Court of Justice concluded that the interest in free movement of goods prevented national (non-harmonised) law from barring price comparisons. Ibid, para 23.

  95. 95.

    Weatherill, Stephen, ‘EU Consumer Law and Policy’, (2nd edn, Edward Elgar, 2013), p. 51. Elaborating on the harmonisation of comparative advertisement regulation, Weatherill mentioned that the decisions related to the Directive on misleading advertising, which did harmonise comparative advertisement.

  96. 96.

    X (Nissan), Case C-373/90, [1992], ECR I-131.

  97. 97.

    X (Nissan), Case C-373/90, [1991] ECR I-131, (opinion of AG Tesauro), para 1.

  98. 98.

    Directive (ECC) No. 84/450 of 10 September 1984 relating to the approximation of the laws, regulations and administrative provisions of the Member States concerning misleading advertising. This directive was later amended by the UCPD.

  99. 99.

    X (Nissan), Case C-373/90, [1992], ECR I-131, para 9.

  100. 100.

    Ibid, para 11.

  101. 101.

    Ibid, paras 13-16.

  102. 102.

    Ibid, para 17. See also GB-INNO, Case C-362/88, [1990] ECR I-667, para 17.

  103. 103.

    X (Nissan), Case C-373/90, [1992], ECR I-131, para 19.

  104. 104.

    Ibid, paras 15-16. See also referring to this Gut Springenheide and Tusky, Case C-210/96, [1998] ECR I-4657, para 34.

  105. 105.

    X (Nissan), Case C-373/90, [1991] ECR I-131, (opinion of AG Tesauro), para 9 (italics added). The saying has initially been translated from Latin into the Italian “le leggi giovano a chi vigila, non a chi dorme” and from Italian into English. The Latin/Italian translation is taken from Paride, Bertozzi, ‘Dizionario dei brocardi e dei latinismi giuridici’, (6th edn, IPSOA, 2009).

  106. 106.

    I.e. Directive (ECC) No. 84/450 of 10 September 1984 relating to the approximation of the laws, regulations and administrative provisions of the Member States concerning misleading advertising. See footnote 98 above. See Verband Sozialer Wettbewerb v. Clinique Laboratoires, Case C-315/92, [1994] ECR I-317, para 9.

  107. 107.

    Council Directive of 27 July 1976 on the approximation of the laws of the Member States relating to cosmetic products (76/768/EEC), [1976] OJ L262/169. See Verband Sozialer Wettbewerb v. Clinique Laboratoires, Case C-315/92, [1994] ECR I-317, para 14. Since the introduction of the directive, the regulation of the cosmetic area has been expanded. For an overview of the current EU regulation on this area see: http://ec.europa.eu/growth/sectors/cosmetics/legislation_en (last visited 26 May 2019).

  108. 108.

    Ibid, para 19. The Court of Justice held that: “The fact that by reason of that prohibition the undertaking in question is obliged in that Member State alone to market its products under a different name and to bear additional packaging and advertising costs demonstrates that this measure does affect free trade.” Ibid.

  109. 109.

    Hence, Gulmann held that: “In order to give the national court the most appropriate answer, the Court can link the interpretation of Article 30 of the EEC Treaty closely to the specific facts of the case before the national court.” Verband Sozialer Wettbewerb v. Clinique Laboratoires, Case C-315/92 [1993] ECR I-317, (opinion of AG Gulmann), para 9. “It is, however, necessary to bear in mind that the question in this case is not whether national legislation is generally compatible with Article 30; rather, the question concerns the application of national rules to a particular legal situation requiring a specific assessment of whether consumers are misled in the particular circumstances. It would in my opinion be wrong for the Court, in a case such as this, to link its interpretation of Article 30 too closely to the particular facts of the case.” Ibid.

  110. 110.

    Ibid, para 18. In Graffione related to the trademark “Contonelle” registered inter alia in Italy, Advocate General Jacobs explained referring to Gulmann’s finding in Clinique: “The present name provides an excellent illustration as regards the linguistic factor. The name ‘Cotonelle’ might, arguably, cause a speaker of English, French or Italian to believe that a product is made of cotton. However, it could hardly have that effect on someone who understands only German or Spanish, since the words for cotton in those languages are ‘Baumwolle’ and ‘algodón’ respectively.” Graffione, Case C-313/94, [1996] ECR I-6039, (opinion of AG Jacobs), para 10. For at outline of the facts of Graffione, see footnote 138 below.

  111. 111.

    See for instance Graffione on the misleading nature of a trademark revoked under the Italian Trademarks Act implementing the TM Directive 1989. Graffione, Case C-313/94, [1996] ECR I-6039, para 22.

  112. 112.

    See recital 18 of the UCPD and the analysis of the average consumer under the UCPD in Chap. 7.

  113. 113.

    Verband Sozialer Wettbewerb v Clinique Laboratoires, Case C-315/92, [1994] ECR I-317, para 22.

  114. 114.

    Ibid, para 13.

  115. 115.

    Ibid, para 23.

  116. 116.

    Reich, Norbert, Micklitz, Hans-W., and Rott, Peter, ‘European Consumer Law’, (2nd edn, Intersentia, 2014), p. 99.

  117. 117.

    Weatherill, Stephen, ‘EU Consumer Law and Policy’, (2nd edn, Edward Elgar, 2013), p. 52. See also Weatherill, Stephen, ‘Who is the ‘Average Consumer’?’, in Weatherill, Stephen and Bernitz, Ulf eds., The Regulation of the Unfair Commercial Practices Under EC Directive 2005/29 (1st edn, Oxford, Hart, 2007), 115, p. 116.

  118. 118.

    Wilhelmsson, Thomas, ‘The Average European Consumer: A Legal Fiction?’, in Wilhelmsson, Thomas, Paunio, Elina and Pohjolainen, Annika eds., Private Law and the Many Cultures of Europe (1st edn, Kluwer Law International, 2007), 243, p. 262 (italics added).

  119. 119.

    Engelbrekt, Antonina Bakardjieva, ‘Fair Trading Law in Flux? National Legacies, Institutional Choice and the Process of Europeanisation’, (1st edn, Stockholm University, 2003), p. 605.

  120. 120.

    Meyhui v. Schott Zwiesel Glaswerke, Case C-51/93, [1994] ECR I-3879.

  121. 121.

    Directive (EEC) No 69/493 on the approximation of the laws of the Member States relating to crystal glass.

  122. 122.

    Meyhui v. Schott Zwiesel Glaswerke, Case C-51/93, [1994] ECR I-3879, para 10, referring to Verband Sozialer Wettbewerb v. Clinique Laboratoires, Case C-315/92, [1994] ECR I-317, para 13.

  123. 123.

    Ibid, para 17.

  124. 124.

    Ibid, para 18 (italics added).

  125. 125.

    Ibid, para 19.

  126. 126.

    Advocate-General Gulmann did not at all refer to the average consumer as such.

  127. 127.

    Verein gegen Unwesen in Handel und Gewerbe v. Mars, Case C-470/93, [1995] ECR I-1923, paras 8 and 22. The other claim was that consumers expected that the price of the marked snacks would not increase since a price increase would remove the advantage for the consumer. Ibid, para 7.

  128. 128.

    Ibid, para 24 (italics added).

  129. 129.

    Verein gegen Unwesen in Handel und Gewerbe v. Mars, Case C-470/93, [1995] ECR I-1923, (opinion of AG Léger), para 53 (italics added).

  130. 130.

    Gut Springenheide and Tusky, Case C-210/96, [1998] ECR I-4657, (opinion of AG Mischo), para 55.

  131. 131.

    Estée Lauder, Case C-220/98, [1999] ECR I-117, (opinion of AG Fennelly), para 27.

  132. 132.

    Reich, Norbert, Micklitz, Hans-W., and Rott, Peter, ‘European Consumer Law’, (2nd edn, Intersentia, 2014), p. 101.

  133. 133.

    Weatherill, Stephen, ‘Empowerment is Not the Only Fruit’, in Leczykiewicz, Dorota and Weatherill, Stephen eds., The Images of the Consumer in EU Law: Legislation, Free Movement and Competition Law (1st edn, Hart, 2016), 203, p. 206.

  134. 134.

    Commenting on Mars, Weaterhill stated in 2013 that “[o]ne may wonder whether the court had become rather fed up of the German-sourced stream of indefensible examples of over-regulation spuriously depicted as measures of consumer protection.”

    Weatherill, Stephen, ‘EU Consumer Law and Policy’, (2nd edn, Edward Elgar, 2013), p. 53.

  135. 135.

    Weatherill, Stephen, ‘Empowerment is Not the Only Fruit’, in Leczykiewicz, Dorota and Weatherill, Stephen eds., The Images of the Consumer in EU Law: Legislation, Free Movement and Competition Law (1st edn, Hart, 2016), 203, p. 206.

  136. 136.

    Engelbrekt, Antonina Bakardjieva, ‘Fair Trading Law in Flux? National Legacies, Institutional Choice and the Process of Europeanisation’, (1st edn, Stockholm University, 2003), p. 132.

  137. 137.

    Ibid, p. 533. “Wettbewerbsverbände” refer to organisations prosecuting a wide variety of trade practices considered harmful to its members. For further on these organizations and their legal standing, see Engelbrekt, Antonina Bakardjieva, ‘Fair Trading Law in Flux? National Legacies, Institutional Choice and the Process of Europeanisation’, (1st edn, Stockholm University, 2003), p. 132-133.

  138. 138.

    In Italy, the Italian company Scott sold inter alia, toilet paper bearing the trademark COTONELLE. An Italian court revoked the trademark since it, according to the court, misled consumers into assuming that the paper contained cotton. At EU level, the relevant trademark provision was found art. 12(2)(b) of the TM Directive 1989 (art. 20(b) of the TM Directive). Despite similar actions in France and Spain, the mark remained valid in those countries. An Italian wholesaler, Graffione, was due to the Italian decision unable to supply its customers with Cotonelle toilet paper etc. Fransa, that owned a supermarket in Italy, however, could continue the sale of these Cotonelle marked goods since it imported them into Italy from France. In an Italian court, Graffione sought an injunction against Fransa on the ground of Fransa’s breach of unfair competition law. Fransa claimed that a prevention of its continuing sale of the Cotonelle goods would compromise free movement of goods.

  139. 139.

    Graffione, Case C-313/94, [1996] ECR I-6039, para 24.

  140. 140.

    Ibid, para 26.

  141. 141.

    Estée Lauder, Case C-220/98, [1999] ECR I-117, (opinion of AG Fennelly), para 26, including footnote 37 of the text.

  142. 142.

    Van Bennekom, Case 227/82, [1983] ECR 3883 and Commission v. Germany 1992, Case C-290/90, [1992] ECR I-3317 (italics added). See also Upjohn, Case C-112/89, [1991] (the hearing report), ECR I-1703. As mentioned, Fennelly referred to “the average well-informed consumer.” Italics and emphasis added.

  143. 143.

    Oxford University Press online English/English dictionary.

  144. 144.

    Ibid.

  145. 145.

    See Chap. 6, Sect. 6.5.

  146. 146.

    See also in Chap. 11, Sect. 11.2.2.

  147. 147.

    In German: “[B]ei einem durchschnittlich informierten Verbraucher.”

  148. 148.

    In French: “[A]ux yeux d’un consommateur moyennement avisé.”

  149. 149.

    In Dutch: “Gemiddeld onderscheidingsvermogen begiftigde consument.”

  150. 150.

    Italics added.

  151. 151.

    In German: “[D]er durchschnittlich unterrichtete Verbraucher.”

  152. 152.

    In French: “[L]e consommateur normalement avisé.”

  153. 153.

    In Gyldendals Danish/English dictionary available online, “almindeligt” is translated into “commonly, generally, normally, ordinarily, averagely.” In the general dictionary from Gyldendal, “averagely” is left out. Italics in the quote are added.

  154. 154.

    In German: “den durchschnittlichen Verbraucher,” in French: “le consommateur moyen,” in Dutch: “gemiddelde consument” and in Danish: “gennemsnitlige forbruger.”

  155. 155.

    Mellor, James, David Llewelyn, Moody-Stuart, Thomas, et al, ‘Kerly’s Law of Trade Marks and Trade Names’, (16th edn, Sweet & Maxwell, 2018), p. 59-61.

  156. 156.

    Hence, in the internet decisions, the Court of Justice has used the term “average internet user”, see Chap. 11, Sect. 11.5. Recently, the General Court in Pensa Pharma v. EUIPO has also referred to the “average user” of soaps, pharmaceuticals etc. Pensa Pharma v. EUIPO, Joined cases T-544/12 and T-546/12, [2015], (judgment), para 117.

  157. 157.

    See above in Sect. 8.5 on Upjohn, Case C-112/89, [1991] ECR I-1703, (opinion of AG Lenz).

  158. 158.

    Wilhelmsson, Thomas, ‘The Average European Consumer: A Legal Fiction?’, in Wilhelmsson, Thomas, Paunio, Elina and Pohjolainen, Annika eds., Private Law and the Many Cultures of Europe (1st edn, Kluwer Law International, 2007), 243, p. 246 (italics added). For a further addressing of this query in the realm of the UCPD, see Chap. 7, Sect. 7.4.

  159. 159.

    One exception mentioned in this chapter is Buet v. Ministère public, Case 382/87, [1989] ECR 1235.

  160. 160.

    Cassis de Dijon, Case 120/78, [1979] ECR 649, see above Sect. 8.3.

  161. 161.

    Beer Purity, Case 178/84, [1987] ECR 1227, see above Sect. 8.4.

  162. 162.

    Van Bennekom, Case 227/82, [1983] ECR 3883, see above Sect. 8.4.

  163. 163.

    GB-INNO, Case C-362/88, [1990] ECR I-667, see above Sect. 8.6.

  164. 164.

    Verein gegen Unwesen in Handel und Gewerbe v. Mars, Case C-470/93, [1995] ECR I-1923, see above Sect. 8.6.

  165. 165.

    X (Nissan), Case C-373/90, [1992], ECR I-131, see above Sect. 8.6. Vice versa, as addressed in Chap. 11, the General Court has repeatedly assumed that the level of attention of the average consumer is low when purchasing cheap “everyday consumer goods”. See Chap. 11, Sect. 11.4.1.1.

  166. 166.

    Meyhui v. Schott Zwiesel Glaswerke, Case C-51/93, [1994] ECR I-3879, see above Sect. 8.6. Vice versa, the General Court has made an assumption on consumer habits, when purchasing “everyday consumer goods.” The assumption is that consumers need less information purchasing these products compared to other products. See Chap. 11, Sect. 11.4.1.1.

  167. 167.

    See also generally on the role of the Court of Justice as a motor for harmonisation, Chap. 4, Sect. 4.3.

  168. 168.

    Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States. Committee on the Judiciary United States Senate, 109th Congress 1st session September 12-15, 2005, Serial No. J–109–37, p. 56.

  169. 169.

    Posner, Richard A., ‘How Judges Think’, (1st edn, Harvard University Press, 2008), p. 78.

  170. 170.

    Jacob, Marc A., ‘Precedents and Case-Based Reasoning in the European Court of Justice: Unfinished Business’, (1st edn, Cambridge University Press, 2014), p. 21. Jacob refers to Robert on p. 31.

  171. 171.

    Bengoetxea, Joxerramon, ‘The Legal Reasoning of the European Court of Justice: Towards a European Jurisprudence’, (1st edn, Clarendon Press, 1993), p. 87 (italics added).

  172. 172.

    Jacob, Marc A., ‘Precedents and Case-Based Reasoning in the European Court of Justice: Unfinished Business’, (1st edn, Cambridge University Press, 2014), p. 21.

  173. 173.

    See Segal, Jeffrey A., ‘Judicial Behaviour’, in Goodin, Robert E. eds., The Oxford Handbook of Political Science (1st, Oxford University Press, 2011), 275, chapter 14.

  174. 174.

    Ross has pointed out that “[t]he constructive part played by the judge” “to correct the directive of the statute is only rarely manifest.” Ross, Alf, ‘On Law and Justice’, (1st edn, University of California Press, 1959), p. 151-152. Although this finding was made in a pre-EU setting, it is even more so relevant to the CJEU. See also in general the reasons in Chap. 2, Sect. 2.2.1.

  175. 175.

    Gulmann also gave the opinion in Meyhui v. Schott Zwiesel Glaswerke, Case C-51/93, [1994] ECR I-3879, (opinion of AG Gulmann).

  176. 176.

    Mancini was Advocate General from 1982 to 1988 and judge from 1988 to 1999.

  177. 177.

    Gulmann was Advocate General from 1991 to 1994 and judge from 1994 to 2006.

  178. 178.

    Chapter 10, in particular Sect. 10.2.

  179. 179.

    The authors have also stressed that Advocate General Jacobs was important to developing European intellectual property law, including trademark law.

    Burrows, Noreen, and Greaves, Rosa, ‘The Advocate General and EC Law’, (1st edn, Oxford University Press, 2007), p. 128. In fact, Burrows and Greaves refer anecdotally to the farewell reception in honour of Jacobs and Gulmann held in January 2006 where “the President of the European Court of Justice specifically praised their contribution to the development of the Community’s trade mark case law.” Ibid, footnote 16 of the text.

  180. 180.

    This finding applies with the significant caveats set out in this section.

  181. 181.

    Respectively, Sabel v. Puma, Case C-251/95, [1997] ECR I-6191, Gut Springenheide and Tusky, Case C-210/96, [1998] ECR I-4657 and Lloyd Schuhfabrik Meyer v. Klijsen Handel BV, Case C-342/97, [1999] ECR I-3819.

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Laustsen, R.D. (2020). The Early Beginnings of the Average Consumer Pre Sabel . In: The Average Consumer in Confusion-based Disputes in European Trademark Law and Similar Fictions . Springer, Cham. https://doi.org/10.1007/978-3-030-26350-8_8

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