Whenever trademark attorneys or trademark courts compare two trademarks, it may feel very subjective. Similarity between trademarks can often be argued both in favour of the claimant or the defendant.
Also, often when two trademarks are compared, it is easy to spot the differences, like in the classic Dutch Sportlife vs. Stimorol-case.
Of course there are similarities: the blue and white colour combination, the diagonally positioned trademark and the proportions of the packaging. But there are also some clear differences.
On the other hand, with these kind of products, that are sold and bought in supermarkets where the average decision to buy a specific product and put it in your shopping basket is only (a fraction of) seconds, you must not forget that the consumer does not take the time to carefully inspect the packaging of products. Consequently, differences are often overlooked and similarities are more important when assessing the risk of confusion.
The European Court of Justice, the highest European court, once ruled that the “average consumer” is “reasonably well-informed and reasonably observant and circumspect”. But in some cases the consumer might fit the definition of Mr. Justice Foster in the case Morning Star Cooperative Society v Express Newspapers Limited (1978) better. The judge said the average consumer could be defined as a “moron in a hurry”.
Who would you rather be?