Güncel Gelişmeler Işığında Ortalama Tüketici Ölçütünün Yeniden Yorumlanması
Gül BüyükkılıçMarka hukukunda “ortalama tüketici”, bir ürünün veya hizmetin hedef kitlesini temsil eden ve marka tescili veya ihlali durumlarında dikkate alınan bir ölçüttür. Bu ölçüt, tüketici davranışlarını ve algılarını değerlendirme ve belirli bir markanın tescil edilebilirliği veya ihlali konusunda karar vermede belirleyici bir role sahiptir. AB ve Türk marka mevzuatında tanımı yapılmamış olan ortalama tüketici, doktrin ve yargı kararlarında “makul seviyede bilgilendirilmiş ve makul seviyede dikkatli ve tedbirli kimse” şeklinde formüle edilmiş olmakla beraber, özellikle elektronik ticaretin gittikçe önem kazandığı, pazar şartlarının her geçen gün değiştiği ve bu çerçevede tüketicinin algısının da geleneksel anlayıştan farklı bir şekle büründüğü günümüzde ortalama tüketicinin formüle edilmesinin somut olay değerlendirmesinde yargıya gereken esnekliği sağlamaktan uzak olduğu yadsınamaz bir gerçektir. Ortalama tüketici ölçütünün disiplinler arası bir yaklaşımla ele alınmasının ve karıştırılma ihtimalinin global değerlendirmesi kapsamında fiili kullanım ve karıştırılma ihtimaline ilişkin anket delili ve kamuoyu araştırması delillerinin de dahil edilmesinin somut uyuşmazlıkların daha objektif bir zeminde çözümlenmesi bakımından faydalı olacağı düşünülmektedir.
Reinterpretation of the Average Consumer Benchmark considering Recent Developments
Gül BüyükkılıçIn trademark law, the “average consumer” is a benchmark that represents the target audience of a product or service and is considered in cases of trademark registration or infringement. This criterion plays a decisive role in assessing consumer behaviour and perceptions and deciding on the registrability or infringement of a particular trademark. Although the average consumer has been formulated as “a person who is reasonably well-informed and reasonably observant and circumspect” by the doctrine and judicial decisions, it is an undeniable fact that the formulation of the average consumer is far from providing the necessary flexibility to the judiciary in the evaluation of the concrete case, especially today, when electronic commerce is gaining importance, market conditions are changing day by day, and the perception of the consumer has taken a different shape from the traditional understanding. An interdisciplinary approach to the average consumer criterion and the inclusion of survey evidence and public opinion survey evidence regarding actual use and likelihood of confusion within the scope of the global assessment of likelihood of confusion would be beneficial in terms of resolving concrete disputes on a more objective basis.
In trademark law, the average consumer is a measure that represents the target audience of a product or service and is used as a reference in cases of trademark registration or trademark infringement, and has a decisive role in evaluating consumer behaviour and perceptions and deciding on the registrability or infringement of a particular trademark or product. Indeed, one of the most important tools in the registration of a trademark and determination of the scope of protection is the likelihood of confusion between signs, and the registration request of a sign that is likely to be confused, including the likelihood of being associated by the publicise to its sameness or similarity with a registered or previously applied trademark and the sameness or similarity of the goods or services covered by it, is rejected upon objection [Industrial Property Law No 6769 (IPL) Art 6/1]. Again, the registration or unregistered use of such a sign constitutes an infringement of the trademark right with the previous registration date and may be prevented by the trademark right holder [Art 7/2(b) of the IPL, Art 29/1 of the IPL].
The IPL has preferred to use the term “by the public” in relation to the similarity assessment of trademarks within the scope of the likelihood of confusion. However, it is accepted in both doctrine and judicial decisions that the expression “likelihood of confusion, including the likelihood of association by the public” used by the legislator does not mean all segments of the society, but the specific environment that faces the danger of association or confusion. In other words, in all these cases, the person whose perception is taken as the basis in determining the likelihood of confusion is the “average consumer”.
Although most of the disputes regarding trademark law arise on the axis of likelihood of confusion, the “average consumer”, which is taken as a criterion in the evaluation, is not defined in the IPL or the Regulation on the Implementation of the Industrial Property Law, nor is there any regulation on its scope and limits in the trademark legislation. On the other hand, it is determined that the average consumer is defined in secondary regulations in two different areas. These are the Regulation on Commercial Advertising and Unfair Commercial Practises (Art 4/1-j) and the Turkish Food Codex Regulation on Nutrition Declarations (Art 4/1-f).
In the judicial decisions on the subject, the average consumer is formulated as reasonably well-informed and reasonably observant and circumspect, but the level of information, attention and caution required may be evaluated differently within the framework of various criteria such as the nature of the goods/services or the nature of the buyer group[1].Indeed, while the presumptive level is higher in certain groups of goods/services, it may be at an average level in others. As a matter of fact, it is accepted that consumers will generally not act carefully in terms of products that are used by all segments of society in daily life.
The average consumer group criterion used in trademark registration and infringement proceedings is the product of a norm-based practise that follows the legal or policy objectives underlying trademark law. Although the average consumer criterion as “a reasonably informed and reasonably cautious and prudent person” provides convenience to the decision-makers, it is insufficient because it does not take into account the scientific data on how consumer perceptions are actually directed. The replacement of traditional commerce by electronic commerce affects the purchasing behaviour of consumers and shapes consumer perception. The criteria determined within this framework make it impossible to make decisions on the subject on an objective and equitable basis.
This paper does not aim to eliminate the criterion of the average consumer, but it may be time to adopt a more empirically grounded approach to the average consumer. First of all, the norm-infused structure of the average consumer is fictional in three senses: attention, knowledge and vigilance. This triple artificiality leads to a nonnegligible disconnect between what trademark law recognises and what reality is. Adding more reality to thisremodelling process and interpreting the average consumer as objectively as possible requires an interdisciplinary work between behavioural sciences and legal science. On the other hand, it is considered that the actual use of the trademark should also be taken into account as part of the global assessment in the likelihood of confusion assessment, and a more empirically based structure should be established by applying survey evidence in proving the likelihood of confusion.