Ilanah Fhima presents empirical research on minority rights and trade mark law

Professor Ilanah Fhima, Co-director of the Institute of Brand and Innovation Law (IBIL) and Professor of Intellectual Property Law at UCL Faculty of Laws, was invited to present empirical aspects of her new research as part of the CREATe Trade Mark Seminar Series, Autumn 2024, hosted by CREATe (a research centre at the University of Glasgow), which seeks to showcase trade mark research projects which utilise innovative research methodologies. 

Her presentation, entitled 'Multiculturalism, Minority Language Rights and Trade Mark Law: Protecting the Less-than-Average Consumer - The Empirical Edit', discussed empirical aspects of a larger research project. This project evaluates how the definition of the 'average consumer' in UK and EU trade mark law (the lens through which many fundamental issues are viewed) may have the unintended consequence of undermining minority rights, including minority language rights. Traditionally, the UK ‘average’ consumer (as the term is understood in common parlance) is very much a monoglot. Professor Fhima's work advocates for a broader and more inclusive understanding of the average consumer to account for minority language speakers.

In her talk, Professor Fhima outlined her approach to the qualitative and quantitative analysis of UK Intellectual Property Office trade mark decisions, including the challenges faced in assembling her dataset of cases of nearly 3,000 cases reported in the period covered by the study. In presenting her findings, she identified that within the 203 'foreign language' mark cases, there were ten different approaches to defining the 'average consumer'. Not only was there a surprising lack of consistency across Hearing Officers, but individual Hearing Officers were also shown to be adopting a range of approaches. Despite recent clarification from the courts as to those approaches which should (and should not) be followed, there were few signs that this guidance was filtering down and being applied in indivudual cases. In concluding, Professor Fhima pointed to signals in the Supreme Court's Amazon v Lifestyle ruling and the Court of Appeal in Lidl v Tesco, which lent support for more nuanced interpretation of the average consumer. 

This part of Professor Fhima’s research underscores the importance of recognising minority language speakers as 'significant' consumer groups to avoid monopolisation of terms which are descriptive in their languages. Greater acknowledgment of linguistic diversity in trade mark law, she argues, will not only better serve the consumer protection and fair competition justifications underlying trade mark law, but also protect wider societal concerns. This work furthers IBIL’s tradition of fostering thought-provoking discourse and advancing cutting-edge research in intellectual property law.