This chapter investigates the consumer benchmarks applied in English law . In contrast to German law, which had (and to a certain extent still has) a reputation of having low expectations of the consumer in order to secure a high level of consumer protection , English law had a reputation for having more of a laissez-faire approach towards potentially unfair commercial practices.¹ Also in this chapter, the question is addressed which benchmarks were, and currently are, applied in order to determine whether a commercial practice is found unfair, and what behaviour is expected of the consumer in this context.

Unlike, for example, German law , English law does not have a general act governing unfair competition.² Nor did English law , prior to the implementation of the Unfair Commercial Practices Directive, have a general clause prohibiting unfair commercial practices. However, that does not mean that consumers and competitors were left unprotected from fraudulent practices. Different acts, such as the Trade Descriptions Act 1968 and the Control of Misleading Advertisements Regulations 1988 were in place to protect consumers. Moreover, competitors could use economic torts, in particular the tort of passing-off , to challenge unfair competition in the form of deception of consumers. Apart from the Consumer Protection from Unfair Trading Regulations 2008 , which implement the Unfair Commercial Practices Directive, these are the instruments that are investigated in this chapter. They are relevant in order to identify which benchmarks were applied before the implementation of the Unfair Commercial Practices Directive, and, as is shown in more detail below, the case law on the consumer benchmarks applied on the basis of those instruments remains relevant for the application of the consumer benchmarks according to the Consumer Protection from Unfair Trading Regulations 2008.

As different instruments are relevant in the discussion on the consumer benchmarks and since in English law there is no clear demarcation between an ‘old’ and a ‘new’ benchmark as is the case in German law, this chapter is structured differently from the previous chapter on German law. Rather than discussing the old and new benchmarks and specifying the different categories related to the benchmarks, this chapter is structured according to the different relevant instruments. Each of these instruments is introduced, followed by a discussion on the consumer benchmarks applied under those instruments. The discussion commences with the economic tort of passing-off (paragraph 6.2) prior to progressing to the more consumer oriented legislation, i.e., the Trade Description Act 1968 (paragraph 6.3), the Control of Misleading Advertisements Regulations 1988 (paragraph 6.4) and, finally, the Consumer Protection from Unfair Trading Regulations 2008 (paragraph 6.5).³ The cases discussed have primarily been selected on the basis of the reports on the implementation of the Unfair Commercial Practices Directive, as well as on the handbooks on the relevant instruments.⁴

As mentioned above, there was (nor is) a general act on unfair competition under English law.⁵ Nor is there a general tort in place to challenge unfair competition. However, the economic tort of passing-off addresses a specific form of unfair competition, as it grants businesses being disadvantaged by their competitors the right to bring an action due to misrepresentations aimed at their customers. Although the tort concerns deception of customers, only competitors who have been harmed can initiate proceedings.⁶

In essence the tort of passing-off offers an action to businesses to challenge a competitor who is making customers believe that the products he or she is selling are in fact those of another business. So if a customer is made to believe by seller A that he or she is buying a product from the reputable business B, while he or she is in fact buying a product from A, B can challenge this practice in court on the grounds of the tort of passing-off. While this is the classic case of passing-off , the tort has been extended over the years to also cover other types of product confusion that are more-or-less similar to this scenario.⁷ For example, producers of advocaat (a traditional Dutch eggnog liqueur) successfully challenged producers of another type of eggnog liquor called ‘egg-flip’, selling their product under the name ‘English Advocaat’. Although this practice could not confuse consumers regarding the producer, it did disadvantage producers of the original advocaat, because consumers were thought to believe that they were in fact buying genuine advocaat rather than egg-flip.⁸ Generally speaking, the tort of passing-off was an important action in cases of brand confusion, at least until the implementation of the European instruments on trademark protection.⁹

In all these cases, it is required that the representation must be likely to deceive the claimant’s customers.¹⁰ Although the tort of passing-off cannot be regarded as part of consumer protection law in a strict sense, the fact that it deals with confusion of customers makes it interesting to examine when investigating the consumer benchmarks applied in English law . Moreover, the consumer benchmark as applied in the context of the tort of passing-off was discussed in the preparation of the implementation of the Unfair Commercial Practices Directive, making it relevant in relation to current law (see paragraph 6.5 below).

In order to determine whether customers are being deceived, the judge must establish whether a substantial number of the members of the public, i.e., an above de minimis level, would be misled.¹¹ In this context it is necessary to identify the likely purchasers of the product or service.¹²

Looking at the case law in more detail, one of the most interesting cases regarding the consumer benchmark applied in the context of the tort of passing-off is Reckitt & Coleman Products Ltd v Borden Inc (1990).¹³ This case before the House of Lords dealt with two lemon juice manufacturers, selling their product in similar plastic squeeze containers in the shape and size of a lemon. The plaintiff in this case, who was market leader (having a market share of 75 %) and had been using lemon shaped containers for many years, argued that the containers of its competitor were causing confusion under consumers regarding the brand that they were in fact buying. Upon careful observation, consumers would be able to see the differences between the containers and could therefore not be confused. The Chancery Division of the High Court had argued that an ‘ordinary average shopper’ should be the benchmark to determine whether or not the similarity of the containers deceived the public:¹⁴

[T]he question is not whether the judge himself would be deceived by the defendants’ get up; the question is whether, in the light of all the admissible evidence, the judge is persuaded that an ordinary average shopper, shopping in the places in which the article is available for purchase, and under the usual conditions under which such a purchase is likely to be made, is likely to be deceived. I put the matter in this way because both sides are really agreed that under today’s shopping conditions, under which the humblest grocer’s shop takes upon itself as much of the attributes of a supermarket as it can possibly muster—virtually certainly including self-service—one is typically dealing with a shopper in a supermarket, in something of a hurry, accustomed to selecting between various brands when there is such a choice, but increasingly having to choose in relation to a wide range of items between the supermarket’s ‘own brand’ and one other brand, and no more.

This judgment was contested by the defendant before the Court of Appeal and the House of Lords. The defendant argued that a careful shopper would easily reach the conclusion that the containers looked different, and that, ‘taken as a whole, a side-by-side visual comparison would clearly dispel any possibility of confusion between the two products.’¹⁵

However, Lord Goff of Chievely stressed that although upon careful consideration consumers would be able to see the difference between the products, this careful observation should not be the point of departure for deciding whether consumers are confused:¹⁶

[O]f course, statements such as this are made in the context of the particular facts under consideration. They cannot be treated as establishing a principle of law that there must always be assumed a literate and careful customer. The essence of the action for passing off is a deceit practiced upon the public and it can be no answer, in a case where it is demonstrable that the public has been or will be deceived, that they would not have been if they had been more careful, more literate or more perspicacious. Customers have to be taken as they are found.

Hence, the House of Lords dismissed the appeal, holding that the defendant had not taken adequate steps to differentiate its product container from that of its competitor in order to ensure that consumers would not be deceived.

The reasoning of the House of Lords bears close resemblance with the CJEUs case law applying the average consumer benchmark in trademark cases. In several of those cases, the CJEU emphasises that the average consumer is rarely expected to have the chance to make a direct comparison between different trademarks and must place his or her trust in the imperfect picture of the trademarks that he or she has kept in his mind.¹⁷ At the same time, the reasoning does not seem to be in accordance with the CJEUs labelling doctrine and the other stricter case law of the CJEU in the field of misleading commercial communication. These issues are dealt with in more detail at the end of the next paragraph, when dealing with the Trade Descriptions Act 1968.

In the earlier passing-off case Consorzio del Prosciutto di Parma v Marks & Spencer plc et al (1960), the Court of Appeal argued that in order to grant a claim under the tort of passing-off, ordinary, sensible members of the public or a section of them must be confused.¹⁸ The fact that it concerns ordinary members of the public again seems to imply that a particularly high level of knowledge is not expected. This also follows from Bollinger v Costa Brava Wine (1960), where Justice Donckwerts argued that there is ‘a considerable body of evidence that persons whose life or education has not taught them much about the nature and production of wine, but who from time to time want to purchase champagne, as the wine with the great reputation, are likely to be misled by the description ‘Spanish Champagne’.’¹⁹

Hence, both as to the level of attention, as well as to the level of knowledge the courts do not seem to have particularly high expectations of the consumer. Nevertheless, it is similarly clear that the courts take the ordinary consumer as a benchmark rather than a particularly weak consumer.²⁰

Until the implementation of the Unfair Commercial Practices Directive, the Trade Descriptions Act 1968 was the centrepiece of English trade practices law.²¹ This Act could give rise to criminal proceedings against those who gave false or misleading descriptions of products or services. The main provisions of the Act were divided across two main sections, namely section 1 (false and misleading descriptions of goods) and section 2 (false and misleading descriptions of services). In the past, the Trade Descriptions Act also covered false and misleading price indications, but in 1987 this area was moved to the Consumer Protection Act.²² As a consequence of the implementation of the Unfair Commercial Practices Directive, the Trade Descriptions Act and the Consumer Protection Act have now largely been repealed.²³ For the consumer benchmark, the case law applying the Trade Descriptions Act remains valuable. Not only because it provides an idea of the consumer benchmark as it was applied prior to the introduction of the average consumer notion, but also because it is seen as being in line with the CJEUs average consumer benchmark.²⁴ The case law on the consumer benchmark in the context of the Trade Descriptions Act is, therefore, likely to be continued in the context of the implementation of the Unfair Commercial Practices Directive.

The Trade Descriptions Act itself does not elaborate upon the benchmark to be applied,²⁵ but several cases applying the Act do address the issue. The 1972 Doble v David Greig Ltd case is of particular interest in this regard.²⁶ The case concerns the interpretation of section 11 Trade Descriptions Act, which held the prohibition of misleading pricing. The defendant, the owner of a grocery store, offered bottles in a way in which it was unclear whether the sale price included the refund of the empty bottle. In this case, Justice Forbes took into account the interests of a potentially harmed minority, even though the majority of consumers might not be misled:

If it is reasonably possible that some customers might interpret the label as an indication of that kind, it seems to me that an offence is committed, even though many more customers might in fact take the opposite view. In other words the Act requires a shopkeeper, and this seems to me to be important, to take pains to resolve possible ambiguities, and if they are not adequately resolved an offence is committed.

This approach clearly provides more protection than the average consumer benchmark, even if this benchmark would reflect actual behaviour of the average consumer, rather than the sometimes high expectations of the average consumer’s behaviour in the case law of the CJEU.²⁷

Justice Forbes’ view in relation to the average consumer is discussed in the report of Twigg-Flesner et al for the UK Department of Trade and Industry (DTI) in preparation for the implementation of the Unfair Commercial Practices Directive:²⁸

[The view of Justice Forbes] seems to be a position which is very favourable to consumers, and it certainly goes wider than the notion of an ‘average consumer’. However, if this is compared not only with the general ‘average consumer’ test in the UCPD, but also with the modification for ‘vulnerable consumers’ in Art. 5(3) UCPD, then the approach suggested by Forbes J (in the context of the specific provision of the Trade Descriptions Act 1968) would not be that far removed from the test applied in the UCPD.

So although the benchmark applied by Justice Forbes offers more protection than the European average consumer benchmark, it is still regarded as being compatible with European law by way of the vulnerable group benchmark. However, as has been shown in the discussion on the average consumer benchmark and the vulnerable group benchmark in the context of the Unfair Commercial Practices Directive, it is questionable whether the vulnerable group benchmark provides such extensive possibilities to protect minorities.²⁹

Aside from this, it must be taken into account that later case law applying the Trade Descriptions Act seems to be less focused on the protection of minorities, applying the test of the ‘reasonable members of the public’,³⁰ ‘ordinary person’,³¹ ‘ordinary shoppers’,³² ‘reasonable person’³³ or ‘average person’.³⁴

Still, in Ashurst v Hayes and Benross Trading (1974) it was explicitly stated that clearly false trade descriptions are not allowed, even if the average person would not be misled. It is emphasised that ‘a defendant cannot escape responsibility merely because it is likely that the average person would not be misled by the false description he has applied to the goods.’³⁵

What exactly is expected of this ‘ordinary’, ‘reasonable’ or ‘average’ consumer? An important case in this respect is Burleigh v Van den Berghs and Jurgens (1987).³⁶ The defendant in the case marketed imitation ice cream, which from its packaging could not easily be distinguished from genuine ice cream. Judge Gower applied as the benchmark for the application of the Trade Descriptions Act the ‘average person’ and emphasised that this standard does not reflect a consumer with less than average capabilities:

It is important that we should remember that we are dealing with the average person. It is not enough that we should be sure that an unusually careless person might be misled by the packaging. It is not enough that we should be sure that a person who is dyslexic, illiterate, short-sighted or of less than average intelligence should be misled.

This seems to move away from Justice Forbes’ minority protection. Nonetheless, while this may stress that it is not sufficient if a small section of the consumer population is deceived, the application of this average person benchmark in the same case suggests that it does not pose a very high standard. The Court still argued that the ice cream packaging was misleading:

[W]e are satisfied that this packaging is likely to deceive the ordinary average customer for the very simple reason that the general appearance of the packaging and the colouring of the packaging is that associated in the mind of the shopping public with cream […]. [T]he average member of the public is not likely to read what is printed on the packaging with sufficient care and attention to realise that what is being offered for sale is imitation cream and not the real product.

Hence, the average customer is assumed neither to be very attentive nor critical. He or she is assumed not to read the packaging in detail and, as a consequence, he or she will not realise that he is buying imitation rather than genuine ice cream. The average customer rather bases his purchasing decision on a quick and general observation of the product.³⁷ This is in line with the ‘ordinary average shopper’ benchmark or ‘ordinary member of the public’ benchmark as applied in the context of passing-off and with the application of the average consumer benchmark by the CJEU in trademark law. However, it would appear at the same time to be in contrast with the application of the average consumer benchmark in the context of the CJEUs labelling doctrine. As discussed in Chaps. 3 and 4 of this book, the European average consumer is generally assumed to read product labels and to consider the information available.

The Lewin v Purity Soft Drinks case (2005) seems to move more into the direction of the CJEUs labelling doctrine.³⁸ The case concerned two types of fruit drinks marketed by the same manufacturer. The centre of the labels of the drinks showed a picture of the fruit (blackcurrant and cranberry respectively). Under these pictures the words ‘blackcurrant juice’ and ‘cranberry juice’ were displayed, with the word ‘burst’ underneath. In a box on the side of the bottle the typical values per 100 ml were displayed, accompanied by the words ‘a refreshing juice-based drink’. From the values it was clear that the drinks contained 13 and 25 % fruit, respectively. The claimant argued that the marketing of the drinks as ‘blackcurrant juice’ and ‘cranberry juice’ was misleading in the sense of the Trade Descriptions Act, as consumers would be made to believe that the drinks would contain 100 % fruit juice. The Magistrates Court dismissed the claim:³⁹

[The] descriptions [i.e., ‘Blackcurrant Juice’ and ‘Cranberry Juice’] were not false because a reasonable consumer faced with these products would expect to read the label as a whole, including the ingredients list, and would be familiar with the idea that the ingredients list was likely to appear on the label.

This line of argumentation was upheld in appeal by the Divisional Court. The Divisional Court emphasised that the justices:⁴⁰

[…] sitting as a jury, were entitled to approach the issue of falsity by having regard to what, in their experience, is the expectation of consumers that the label should be read as a whole.

Justices Field and Tuckey argued that this is no different from the ‘ordinary shopper’ test as applied by Lord Justice Bingham in Dixons v Barnett.⁴¹ However, in its application the benchmark seems stricter than the earlier case law, particularly when compared to Burleigh v Van den Berghs and Jurgens. In this respect the case may well be influenced by the CJEUs case law establishing the labelling doctrine. It is interesting to note in this context that the wording of the Divisional Court is somewhat startling; it refers to the experience of the justices, but at the same time to how consumers should behave. Is the statement meant to reflect how consumers generally behave or how consumers generally should behave? The latter seems to be the case, but what is then the meaning of the experience of the justices?

Leaving the labelling doctrine to one side, another interesting case for the benchmark applied under English law in the context of the Trade Descriptions Act is Southwark LBC v Time Computer Systems Ltd.⁴² This case from 1997 deals with computer advertising and shows that the consumer is expected to be rather attentive if he or she is dealing with specific information regarding higher value products.

The defendant advertised its computers in a twenty-page brochure in a computer magazine; the brochure only contained advertisements for the defendant. Mr Osborne, a film lighting technician who was interested in buying a new computer, purchased the computer magazine in order to help him make a purchasing decision. In the end, Mr Osborne bought one of the defendant’s computer systems, attracted by its low price. The advertisements of the individual computer systems contained pictures of software boxes. However, although the computer system purchased by Mr Osborne included pre-loaded software, it was not accompanied by the back-up discs, boxes and manuals. This was regular practice of the defendant in order to save money: the defendant purchased a license to pre-load the software on a large number of computers rather than offering each individual customer the entire package. Furthermore, this practice was explained in a special section in the advertising brochure under the heading ‘How to order’, which referred under the section ‘Pre-loaded software’ to small print on the same page, explaining that ‘All software applications are pre-loaded. Pack shots are shown for illustration only. Printed manuals and back-up discs are available as options.’

The advertising with the image of the software packages was claimed to be a misleading trade description, making customers believe that they would receive all software in its regular form. An essential question in the procedure was whether the customer was expected to read the entire brochure and realise on the basis thereof that the PCs had pre-loaded software instead of the full software packages.

The Magistrates Court had argued that customers in this type of situation are expected to pay attention to all information supplied. Considering the type of product and its high value, Lord Justice Henry of the High Court of Justice agrees with this approach:

[S]he rightly recognised that the question was not whether the individual purchaser was misled, but whether the reasonable customer might have been likely to be misled. She dealt with the reasonable customer in the context of someone buying a computer, and sensibly approaching the purchase of that computer through buying a specialist magazine to assist him in the choice and, in those circumstances, acquainting himself with the brochure. She concluded that, considering the nature of the advertisement within the brochure and the nature of the magazine in which it was contained, the pictorial representation did not constitute a false trade description. […]

It seems to me that the Magistrate was quite entitled to take into account that this was a purchase of a sophisticated and expensive item of equipment. It was a purchase through a brochure incorporated into a serious magazine produced solely or largely for those intending to purchase a computer and the question of law realistically is whether she was entitled to look at the reasonable customer in the round or whether she had to, as a matter of law, impose blinkers on what she considered would have been a reasonable customer’s approach.

Hence, the reasonable consumer’s level of attention is expected to be higher when it concerns high value products and the advertising is placed in a specialised magazine.

In conclusion, it can be said that the consumer benchmark in the context of the Trade Descriptions Act 1968 is an ‘ordinary’ or ‘reasonable’ person, who is not generally believed to be especially attentive, but who is at the same time not misled by mere exaggerations. Looking at the different relevant cases, it must be concluded that it is not always clear what level of ‘being informed and attentive’ and what level of ‘critical attitude’ is expected of the consumer, as this seems to differ from case to case. Especially Lewin v Purity Soft Drinks is stricter than the previous case law. Is this just a coincidence or is the case law moving more towards the CJEU labelling doctrine? If the latter is the case, is this development limited to the labelling doctrine or does it point towards generally higher expectations of the behaviour of the consumer? According to Bragg, the reference consumer applied in the context of the Trade Descriptions Act is identical to that of the CJEUs average consumer.⁴³ While this could be true, the ambiguities in the case law—both English and European—make this difficult to confirm.⁴⁴

It seems that a for consumers more lenient benchmark than that of Lewin v Purity Soft Drinks and Southwark LBC v Time Computer Systems Ltd was being applied in the context of the Control of Misleading Advertisements Regulations 1988 (CMAR).⁴⁵ The CMAR was an almost literal implementation of the Directive on Misleading Advertising (84/450/EEC). The CMAR was repealed in 2008 due to the implementation of the Unfair Commercial Practices Directive.⁴⁶ Due to the strong role of self-regulation in the field of advertising,⁴⁷ the CMAR was not applied widely in court, but rather functioned as a backup, supporting the existing rules on self-regulation.⁴⁸ Under the regulations, the Office of Fair Trading (OFT) could, after receiving a complaint, file for a court injunction.⁴⁹

Similarly to the Misleading Advertising Directive, the CMAR and its case law mention the advertisement’s impact on ‘the persons addressed’, or use similar wording. An elaboration of what is expected of the public was given by the Chancery Division in 1988 in Director General of Fair Trading v Tobyward Ltd.⁵⁰ The case deals with advertising by the defendant for its slimming product ‘Speedslim’. After the Advertising Standards Authority (the organisation heading self-regulation within the British advertising industry) complained, the Director General of Fair Trading (the head of the Office of Fair Trading) filed for an injunction.

The High Court found the advertising for Speedslim misleading on several points. Amongst others, the advertising was found to contain false and unrealistic product claims, such as claiming ‘100 % guarantee of success’ and that the product was a ‘scientific breakthrough’. With help of an expert’s opinion, these claims were found to be false. Of particular interest for the discussion here is that Justice Hoffman of the High Court gave a general view on what was required under the CMAR in order for an advertisement to be misleading:⁵¹

‘Misleading,’ as I have said, is defined in the regulations as involving two elements: first that the advertisement deceives or is likely to deceive the persons to whom it is addressed, and secondly that it is likely to affect their economic behaviour. In my judgment in this context there is little difficulty about applying the concept of deception. An advertisement must be likely to deceive the persons to whom it is addressed if it makes false claims on behalf of the product. It is true that many people read advertisements with a certain degree of scepticism. For the purposes of applying the regulations, however, it must be assumed that there may be people who will believe what the advertisers tell them, and in those circumstances the making of a false claim is likely to deceive. Having regard to the evidence of Professor Bender, which at present is the only scientific evidence before the court, there is in my judgment a strong prima facie case that these advertisements were likely to deceive in each of the six respects of which complaint is made.