The concept of the average consumer and how he perceives signs is a crucial influencing factor in EU trademark law. Because of its close connection to the basic criterion of distinctiveness, consumer perception informs decisions about the granting of trademark protection and deeply impacts the analysis of infringement. Hence, it is of utmost importance to be clear about how we assess this concept: do we need a normative or an empirical approach to consumer perception if we want to ensure fair competition, consumer protection, and the proper functioning of markets? In particular, this study addresses potential risks of too much reliance on empirical findings. Without normative corrections, EU trademark law may become a self-servicing mechanism for the industry. If trademark protection is granted whenever a company manages to educate consumers to recognize a given sign as a trademark, the need to keep certain signs free for other traders and/or the public at large would be disregarded. Similarly, the infringement analysis could become imbalanced if it was reduced to a mere exchange of empirical studies seeking to demonstrate or rebut the existence of a likelihood of confusion or dilution.
The study is closely linked with problems arising from current EU trademark law and practice. For example, it is not clear whether the measurement of consumer perception, as currently conducted in practice, guarantees the proper functioning of markets. Remarkably, assumptions regarding consumer perception are in fact often accepted without proof. In the area of trademark registrations, assumptions stemming from CJEU jurisprudence give rise to the question whether consumers really have difficulties recognizing colours and shapes as identifiers of commercial source. If the Court introduced the assumption of consumers not being ‘in the habit’ of perceiving such signs as trademarks as a tool to keep signs of this kind free, the effectiveness of this regulatory model becomes doubtful with every marketing strategy teaching consumers that colours or shapes can constitute trademarks. Moreover, if a trademark owner can prove that his mark is recognized by a significant portion of the relevant population, the trademark will even be classified as a mark having a ‘reputation’, with the consequence of an enhanced scope of protection. Hence, the trademark law system may appear as a self-servicing system if the decision on the grant and scope of protection actually depends on a schematic empirical approach to consumer perception.
It is unclear to what extent the current trademark system is used by trademark owners strategically to strengthen their own gains in the outlined way. This is why it is necessary to subject our legal assumptions about consumer perception to a careful evaluation based on an appropriate mixture of empirical and normative factors.