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Trade Mark Law, AI, Sustainability – Normative "Average Consumer" Concepts for the Dual Transition to AI-driven, Circular Commerce The "reasonably well-informed and reasonably observant and circumspect" average consumer is a normative construct of European trade mark law. It offers the opportunity to inject policy objectives into the assessment matrix for registration and infringement decisions. A normative consumer conception also supports harmonization goals. Divergent empirical consumer realities across countries and regions can be brought under a common normative denominator. A normative perspective allows trade mark tribunals to base decisions on general – normative – assumptions about consumer perception and consumer behaviour. In line with CJEU jurisprudence, the average consumer is not in the habit of making assumptions about the origin of goods based on their shape or colour. An enhanced risk of consumer confusion is assumed in cases involving marks with a reputation – even though consumers know each and every detail of these marks. In keyword advertising cases, the CJEU added flexibility for new advertising services by switching to the "reasonably well-informed and reasonably observant internet user." For determining whether a sign conflicts with morality, the perception of "a reasonable person with average thresholds of sensitivity and tolerance" is decisive. The ruling in C-298/23, Inter IKEA Systems, may bring political campaigns within the scope of trade mark law and require the development of a specific consumer prototype to safeguard freedom of political expression. Considering the potential of normative consumer concepts to shape trade mark decisions, Professor Senftleben will discuss the need for new conceptions in the light of the dual transition to AI-driven marketing and a circular economy. While AI is often seen as a consumer empowerment tool, challenging the central role of trade marks in product information and search cost reduction, the lecture will demonstrate that the use of generative AI also increases consumer vulnerability and requires a refinement of the average consumer formula. In the sustainability debate, consumer awareness of repair and upcycling practices must be assumed to give the circular economy the opportunity to expand. Recommending normative recalibrations, the lecture will also explore whether a fruitful interplay with empirical findings is still possible in trade mark disputes. Chaired by Professor Sir Robin Jacob

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