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A. INTRODUCTION
The primary objective of trademark law is to prevent consumers from being misled as to the commercial origin of goods and services while safeguarding the rights of trademark owners; at the core of this protection lies the concept of likelihood of confusion. However, this assessment is not conducted in the abstract; rather, it is based on the perspective of the average consumer, which reflects market reality. In Turkish trademark law, the average consumer standard has been shaped particularly through the case law of the Court of Cassation and has become the cornerstone of the likelihood of confusion analysis in parallel with European Union law. In this context, the assessment of likelihood of confusion is not limited to a technical comparison of signs and goods or services, but instead constitutes a holistic analysis based on the perception, level of attention, and overall impression of the average consumer; accordingly, this article examines this method of assessment and the role of the average consumer standard in Turkish judicial practice.
B. LEGAL FRAMEWORK UNDER TURKISH TRADEMARK LAW
The likelihood of confusion is regulated under Article 6/1 of the Industrial Property Code No. 6769 (“IPC”).
Accordingly, a trademark application shall be refused upon opposition if:
- the signs are identical or similar,
- the goods or services are identical or similar, and
- there exists a likelihood of confusion on the part of the public.
It should be emphasized that these elements are not assessed independently, but rather within the framework of a holistic evaluation. At this point, the decisive criterion is the perception of the average consumer.
C. THE AVERAGE CONSUMER STANDARD
In trademark law, the decisive criterion in assessing the likelihood of confusion is the perception of the average consumer. This concept goes beyond a mere legal abstraction and serves as a practical tool that reflects how trademarks are perceived in the marketplace.
The average consumer is considered neither completely inattentive nor exceptionally careful. In Turkish judicial practice, this individual is defined as a person who is reasonably well-informed, observant, and circumspect, and assessments are made based on this hypothetical profile.
Within this framework, the average consumer does not engage in an analytical examination of trademarks. Rather, they typically evaluate marks based on the overall impression retained in their memory, without making a side-by-side comparison. This often results in minor differences going unnoticed, leading to an association between the marks in the consumer’s mind.
In assessing the likelihood of confusion, factors such as the visual, phonetic, and conceptual similarity of the signs, the nature of the goods and services, the distinctiveness of the mark, and the level of consumer attention are all taken into account from the perspective of the average consumer. These elements are not independent but are evaluated in interaction with one another.
In particular, the level of consumer attention varies depending on the circumstances of the case. While consumers are assumed to make quicker and more superficial decisions in relation to everyday consumer goods, they are expected to exercise greater care when dealing with technical or high-value products.
Ultimately, the average consumer standard plays a central role in determining the likelihood of confusion in trademark law, transforming the assessment from a theoretical exercise into a dynamic evaluation aligned with real market conditions.
D. LIKELIHOOD OF CONFUSION AND THE AVERAGE CONSUMER STANDARD IN THE CASE LAW OF THE COURT OF CASSATION
In Turkish trademark law, the existence of a likelihood of confusion is determined based on the specific circumstances of each case, taking into account the similarity of the signs, the relationship between the goods and services, the distinctiveness of the mark, and most importantly, the perception of the average consumer. The case law of the Court of Cassation demonstrates that this assessment is not a purely abstract or mechanical test; rather, it requires a holistic and flexible analysis centered on consumer perception:
Decision of the 11th Civil Chamber of the Court of Cassation dated 12.10.2022 and numbered 2021/2679 E., 2022/6941 K.:
This decision is significant in demonstrating how the perception of the average consumer, the principle of global assessment, and the elements of distinctiveness should be considered together in evaluating the likelihood of confusion.
In the case at hand, the plaintiff’s “KOTON” trademarks were compared with the defendant’s trademark application “COTTONIL.” The first instance court and the Regional Court of Appeal rejected the claim on the grounds that the term “koton” is commonly used in the textile sector and has weak distinctiveness, that the marks were sufficiently differentiated, and therefore that no likelihood of confusion existed.
However, the Court of Cassation did not find this assessment appropriate. The Court emphasized that, in determining the likelihood of confusion, signs must be evaluated through a holistic approach in terms of visual, phonetic, and conceptual aspects, and that consumers do not compare trademarks side by side but rather assess them based on the overall impression retained in their memory.
In this context, the Court noted that the parties’ marks covered the same class of goods and that there was visual, phonetic, and conceptual proximity between the terms “KOTON” and “COTTONIL.” Accordingly, it held that the average consumer could establish an economic or administrative link between the two marks. In particular, considering the recognition of the plaintiff’s mark in the clothing sector, it was found that consumers were likely to perceive the later mark as a continuation of or connected to the same undertaking.
The Court further emphasized that the existence of an actual instance of confusion is not required; the mere risk of such confusion is sufficient. In this respect, the decision clearly highlights the preventive nature of the likelihood of confusion assessment.
As a result, the Court of Cassation concluded that there was a likelihood of confusion from the perspective of the average consumer in the present case and overturned the decisions of the first instance court and the Regional Court of Appeal.
This decision clearly demonstrates that the perception of the average consumer must be considered together with the global assessment of the marks, and that the association between signs in relation to identical or similar goods and services may be decisive in establishing a likelihood of confusion.
Decision of the 11th Civil Chamber of the Court of Cassation dated 01.03.2022 and numbered 2020/7088 E., 2022/1371 K.:
This decision is significant in demonstrating the decisive role of dominant element analysis and the perception of the average consumer in assessing the likelihood of confusion.
In the case at hand, the plaintiff’s “Tom Yum” trademark was compared with the defendant’s trademark application “yum yum crunchies potato sticks+device.” The first instance court and the Regional Court of Appeal rejected the claim on the grounds that the presence of different word elements, particularly at the beginning of the marks, eliminated any likelihood of confusion.
However, the Court of Cassation did not find this assessment appropriate. The Court emphasized that the evaluation of similarity between trademarks should not be based on individual elements in isolation, but rather on the overall perception of the marks, with particular attention to dominant and distinctive elements.
In this context, the Court held that the element “yum,” present in both marks, constituted the dominant and distinctive component, and that the additional word elements did not create sufficient differentiation to neutralize this dominant feature. It was also noted that the fact that the parties’ marks covered the same class of goods further reinforced the likelihood of confusion.
The Court further underlined that the average consumer does not engage in a detailed analysis of trademarks, but instead forms an impression based primarily on shared and dominant elements. Accordingly, it concluded that consumers could form the impression that there is an administrative or economic link between the marks.
As a result, the Court of Cassation found that there was a likelihood of confusion, including the likelihood of association, from the perspective of the average consumer, and overturned the decisions rejecting the claim.
This decision clearly demonstrates that, where common and dominant elements are present, the existence of additional differing elements may not be sufficient to eliminate the likelihood of confusion, and that the perception of the average consumer remains the determining factor in such assessments.
E. CONCLUSION
In Turkish trademark law, the likelihood of confusion is not merely a technical comparison of similarities, but a holistic assessment based on the perception of the average consumer. The case law of the Court of Cassation clearly demonstrates that factors such as the overall impression of the marks, dominant elements, the consumer’s imperfect recollection, and the level of attention must be considered together.
The examined decisions show that, where common and dominant elements exist, the likelihood of association may arise in the mind of the average consumer even if certain differences are present, and that this is sufficient to establish a likelihood of confusion.
In conclusion, the average consumer standard serves as a flexible and case-specific tool in trademark law, ensuring the protection of both trademark owners and consumers.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
