As an IP lawyer, I spend a fair amount of time considering whether certain activity or branding is likely to be confused with, take unfair advantage of, or cause detriment to another brand. The courts have dedicated thousands of pages of judicial consideration to devising appropriate and balanced legal tests. Balanced, because IP is not about absolute monopolies, but about appropriately bounded and regulated monopolies. There must be a balance between the rights of brand owners to protect their IP, the rights of third parties to compete and the rights of consumers to not be misled, unfairly manipulated or deprived of choice. 

But often consumers are largely absent from the picture, in terms of evidence and in terms of judicial consideration. Yes, the judge tries to view the case through the eyes of the hypothetical average consumer who is deemed to be reasonably well-informed and reasonably observant and circumspect. But that construct isn't a living, breathing, thinking person. It is a crude stand-in mediated through the mind of a highly-educated, well-off person, normally male, normally white, normally of a certain age (i.e. a person who is neither average nor particularly representative of the diverse public). And attempts to bring evidence of actual consumers' thoughts into play in trade mark and passing off cases are increasingly meet with opposition from the courts. That is rightly so in many cases, since the sort of consumer survey evidence that tends to be wheeled out is usually flawed and based on responses to artificial stimuli ("What other brand do you think of when you see this margarine?") rather than consumer experiences in the real world. Such evidence costs a fortune to adduce, more time and money in court to cross-examine and tear apart, and then the judge largely ignores it anyway.

What may be missing from IP court cases however, and in particular from so-called "copycat packaging" cases in the retail sector, is data and expert evidence about the myriad complexity of humans' purchasing decisions and their relationships with brands. Studies like this one carried out by the Alan Turing Institute (see link) which show, based on very large datasets, that consumer loyalty can be finite or cyclical and impacted by a lot of things other than what a product looks like; from "self-reinforcing loops" (i.e. we prefer the brand we buy because it validates our decision to buy it rather than because of the relative merits of the product) to a desire to cut costs or otherwise make changes. 

Against that backdrop, judges applying the usual tests for likelihood of confusion, unfair advantage or detriment  (while still legally complex) seem to be missing a key dimension; data-driven insights into how people make purchasing decisions and into how leading brands, challenger brands and retailers all look to capitalise on what they understand of consumers' decision-making processes.