“…by an average consumer”. The CJEU’s judgment was analysed by Jacob LJ, with whom Rix and Auld LJJ agreed, in Reed Executive plc v Reed Business Information Ltd [2004] EWCA Civ 159, [2004] RPC 40. Jacob LJ said at [27] that “there is no reason to suppose that the Court meant to soften the edges of ‘strict identity’ very far”. He went on t…”
“… and 121-122 (Kerr LJ), Brain v Ingledew Brown Bennison and Garrett [1997] FSR 511 at 527-528 (Laddie J) and Reed Executive plc v Reed Business Information Ltd [2004] EWCA Civ 159, [2004] RPC 40 at [162] (Jacob LJ). If the claimant has not adduced any evidence on this question (e.g. because it has obtained summary judgment on liability),…”