Who Reads the Trade Marks Register?

This article starts with a question that looks like it has been taken from an introductory legal reasoning class, namely, is coffee a non-alcoholic beverage? It will be seen that from a trade mark perspective there is reason to conclude that coffee is definitely a non-alcoholic beverage in Australia, is definitely not a non-alcoholic beverage under the European trade mark regime and may or may not be such a beverage in the UK. This divergence is itself worthy of attention, given efforts to facilitate cross-border registration using common terminology. More importantly, however, this article argues that the reason why trade mark law struggles with questions of this type is because it has never taken a clear view of the person at whom the trade marks register is aimed—in particular, it has never been clear as to the level of expertise and knowledge of the internal workings of the trade mark system that is to be attributed to the notional reader of the register. This oversight has important implications for matters that someone new to the field might imagine would have been resolved long ago.