Consumer Attention in the Digital Era: Modernizing the Likelihood of Confusion Standard

Abstract

This article critically examines the role of consumer attention in the EU's likelihood of confusion test ('LoC'), the central standard in trademark law used to assess unlawful similarity between two trademarks. Traditionally rooted in a normative construct of the 'average consumer', who might mistakenly associate one mark with another, the LoC test assumes a reasonably well-informed, observant, and circumspect individual whose attention varies with the type of goods or services at issue. However, this model seems to inadequately reflect the realities of modern, digitally mediated purchasing environments. Integrating insights from behavioral economics, the paper argues that contemporary consumer attention is shaped less by intrinsic product features (e.g. price) and more by the pervasive use of digital tools, such as online reviews and product comparison systems. These tools enable consumers to process vast amounts of pre-purchase information, potentially enhancing their attentiveness and decision-making, even in low-cost or everyday purchases. The article calls for a redefinition of the 'average consumer' as a digital-native internet user, aligning with existing CJEU jurisprudence in online trademark infringement cases. The paper briefly examines the ways in which artificial intelligence is transforming consumer behavior, potentially improving decision-making processes but also posing risks to consumer autonomy. By utilising behavioral economic insights, the paper advocates a modernized LoC framework that better reflects digital purchasing realities, emphasizing the importance of digital tool engagement as a proxy for consumer attentiveness and urging courts to recalibrate the average consumer standard accordingly and its impact on the LoC test.