Kalypso appealed, and
the case reached the General Court, which examined the risk of confusion with
respect to trademarks from the gaming industry. In conducting this evaluation,
the average level of attention of the average consumer for the relevant
category of goods or services should be considered, and in practice this varies
depending on the goods or services in question. In this case, the average level
of attention of the average consumer of computer games was at issue.

How attentive is the average consumer of computer games?

In denying registration
of DUNGEONS, EUIPO found that computer games are an everyday consumer item, treated
by consumers as “disposable products” characterised by low value and high
turnover. No longer confined to a narrow group of enthusiasts, computer games
have become mainstream, with the customer circle extending to “all age groups,
regardless of gender and specific knowledge of the gaming industry.” EUIPO thus
concluded that the goods and services “were intended for the general public
with at most an average level of attention.”

Kalypso challenged this
assessment. In its view, the relevant public for computer games had a high
level of attention: “On that market, there are hundreds, if not thousands, of
games and computer games available simultaneously for which prices are high.
The decision to buy those products, therefore, is based on the prior gathering
of useful information, which shows that purchasing habits in relation to games
and computer games differ from purchasing habits in relation to real everyday
items. Consumers look for information on internet forums or other sources of
information, online or offline, about which games or computer games to buy.”
Kalypso also alleged that it is common in the gaming industry for “the names of
games from different developers to differ only slightly, on the ground that
certain subjects or topics or game styles are very popular and therefore
frequently included in the names. Thus, the relevant audience is accustomed to
paying attention to specific names in order to identify a product among the
multitude of similar games, which entails that it displays a high level of
attention.”

The General Court
rejected Kalypso’s assertion of a high level of attention of the average
consumer of computer games. The court found that computer games are directed
not just to specialist consumers, but also to the general public. Thus for
evaluating the likelihood of confusion, it should be assumed that the average
consumer of computer games displays an average level of attentiveness. As the
court pointed out, “the categories ‘games’ and ‘computer games’ cover a fairly
large number of different goods, which are not luxury or niche products
reserved for a limited number of people. On the contrary, those goods are
available both online and on a self-service basis, they are widely promoted on
different television channels, depending on the target age group, their price
is relatively low and special skills or knowledge are not essential or required
for their purchase.” Thus “computer games are easily accessible to all,
including those without special knowledge.” They may be regarded as everyday
consumer items because they have “gone mainstream.” This is also reflected in
their availability and distribution—“special skills or knowledge are not
indispensable or required in order to purchase them.” Consumers with little
knowledge of games might buy them as gifts, for example. Consequently, the
court concluded, although “part of the relevant public shows a high level of
attention, … games and computer games are also intended for consumers who show
a level of attention that is ‘average at best.’”

Summary

This judgment raises
again an important issue. The model for the average consumer of goods or
services must be established on a case-by-case basis. The evolving commercial
reality must be borne in mind, along with changes in consumer habits and the increasingly
widespread popularity of certain goods. This ruling by the General Court captures
this change in attitude toward computer games, which were originally regarded
as a niche product, targeted to a discerning group of users, but now aimed at
the broad, mainstream public. Along with the spreading popularity of computer
games, the model of the average consumer of gaming goods and services has
changed, and this must be reflected in the analysis of the likelihood of
confusion between products.

Dr Monika A. Górska, attorney-at-law, Intellectual Property practice, Wardyński
& Partners