A. In relation to the comparison of the marks:
B. If the Hearing Officer had not erred in relation to identifying the two groups of average consumer, he had not followed through properly in relation to the second group (the ‘Soul Group’) and had elided that group with the other group (the ‘Unit Group’).The most interesting discussion on appeal concerned point (A)(3), namely whether or not the Hearing Officer had erred in identifying two types of average consumer categorised according to their perception of the marks. Counsel for Soul Cycle argued that there should only be one class of average consumer, namely one akin to the Soul Group, who, having experience of Soul Cycle’s earlier mark SOUL, would appreciate that the mark applied for is composed of the word SOUL followed by the less distinctive element LUXE. There was no room in Soul Cycle’s analysis for both the Soul Group and the Unit Group, where the latter sees the mark applied for as a “meaningless word”. The Court disagreed. Considering Hearst Holdings, Interflora and the ‘single meaning rule’, the judge felt that the Hearing Officer’s approach was justified and he was entitled to find that there would be two groups of average with differing perceptions of the mark each relevant to the similarity assessment. Ultimately, the Court found that the Hearing Officer had made no error of principle and had reached a conclusion he was entitled to reach. The decision of Mr Morris was therefore upheld and Soul Cycle’s appeal dismissed. This case provides clarification that there is “no logical reason” why more than one type of average consumer should not be considered in opposition/validity proceedings and that those different groups can have different perceptions for the assessment of a likelihood of confusion.