The Average Consumer - a commercial testThe average consumer is a legal concept within Marketing Law. It is a fictive model person: "reasonably well-informed and reasonably observant and circumspect, taking into account social, cultural and linguistic factors”, defined in the B2C Directive in the preamble recital 18. The definition is based on the case law of the European Court and threfore is not static.
Advertising to ChildrenThe Directive in Article 5, furthermore, provides expanded protection for children, the elderly and other vulnerable groups. This provision gives weaker groups a protection against such commercial practices as are directed against the general public – but in reality only affect a certain smaller group. The average consumer should then be determined from within this group.
No Legal ExaggerationTo legally limit an exaggerated interpretation and law enforcement of the B2C Directive there are two thresholds:
1) The Concept of the Average Consumer is used as a benchmark for determining unfairness.
2) The Transactional Test (internal link). Material distortion of the economic behaviour of the average consumer is required.
Both these conditions must be satisfied for a commercial practice to be considered unfair. This is true for all commercial practices; except those mentioned in the black list, which are always deemed unlawful.
Case LawA hypothetical Average Consumer is the benchmark that the European Court has used to assess the likelihood of confusion and misleading advertising in marketing law cases. It is a two-step test; firstly the relevant public for the product must be identified, and secondly the expectations and understanding of the average member of that public should be assessed.
The definition of the average consumer was first established in the Gut Springenheide case. The Court of Justice left the factual assessment to the national courts but pointed out that it should start from the “presumed expectations of an average consumer who is reasonably well-informed and reasonably observant and circumspect”. The assessment should hereby not necessarily rely on expert reports or consumer research polls. Such aids are not prohibited but the average consumer is an entirely legal concept and the courts should make the final assessment.
InterpretationThe average consumer, in his or her understanding of marketing, has only a rough idea, but not necessarily a detailed knowledge, of the product or service in question. He or she is capable of recognising the shape of a package as an indication of commercial origin if this shape is distinctive enough to capture the attention of the consumer (Nestlé Waters France). Similarly, there is no need to explain a term like ‘dermatologically tested’. The average consumer will understand that the product underwent tests intended to study its effects on the skin (Case C-99/01 Linhart). The average consumer when buying a product because of its content will also first read the list of ingredients (Adolf Darbo).
The consumer attention varies, depending on the goods or service in question. The average consumer makes an overall judgement without examining the details. He or she must then also rely on an imperfect memory. The average consumer pays less attention to everyday items such as washing tablets (Henkel) or clothes (Miles). The risk of confusion is naturally also increased in self-service stores, where consumers pick the goods on their own (New Look). Regarding more expensive or advanced products such as cars, however, clearly the opposite is true (Ruiz-Picasso). Any possible confusion is also less evident for specialised groups with a more advanced understanding of the products (Toshiba).