Jack Wills, the clothing company that markets itself as “outfitters to the gentry” has enjoyed recent success in its action against House of Fraser  regarding the use of its logo.  Jack Wills complained that the rights in its logo comprising a silhouette of a pheasant wearing a top hat and holding a cane had been infringed by House of Fraser’s use of a logo on its own Linea brand of casual clothing that comprised a profile of a pigeon wearing a top hat and bow-tie. 

The Court concluded that House of Fraser’s logo had infringed Jack Wills’s trade mark. Two aspects of the court’s reasoning are interesting. The first is the characteristics of the average consumer and the second is whether there is a need for evidence that consumer behaviour was affected by the use of the trade marks.  

Average consumer

Jack Wills holds UK and Community trade marks for its logo. For the complaint to be successful the infringing logo must give rise to a likelihood of confusion on the part of the public. The test used is whether an “average consumer” would be confused. The question here was who is the “average consumer” when the two products were targeted at different markets?

The Court found evidence that Jack Wills’s logo had acquired distinctive character amongst one particular demographic, 16-24 year olds and in particular the more affluent consumers in the age range. The judge said that this was a factor that could increase the likelihood of confusion in that particular demographic. However, the logo had both inherent and acquired distinctiveness. Since it had inherent distinctiveness, the average consumer could not be limited to consumers who are familiar with the trade marks. So the average consumer included people in the Jack Wills target demographic who bought the clothes for themselves, but also included other people, including those who bought clothes as presents. 

This guidance is helpful in assisting in identifying that the average consumer in trade mark infringement cases is not necessarily someone within the target demographic of the product. 

Evidence of change of behaviour

In terms of evidence of confusion, the court held that it was not necessary to produce evidence of a change in consumer behaviour as a result of the use of the logo. The court could come to a logical conclusion on this question by looking at that particular market, the nature of the logos and all the other circumstances of the case. 
To come to this decision the Court applied a decision of the Court of Justice of the European Union that the Community Trade Mark Regulation does not require evidence of actual detriment, “allowing the use of logical deductions” the serious risk of detriment is enough.