In a recently published decision of the Single-Member First Instance Court of Athens, judge P. Giannoulis seems to raise the bar as regards the notion of "average consumer" for the purposes of establishing likelihood of confusion.

Under judgment No. 7032/2008, the court rejected a preliminary injunction action filed by DANONE against VIVARTIA (DELTA) regarding respectively the ACTIVIA and DAILY yogurt brands. DANONE argued likelihood of confusion on the basis of the allegedly similar colour combination (mainly green/white) of the two products, but the court stated that the average consumer would be able to distinguish the products on account of the difference of the word marks involved. Further, that only a "totally negligent, careless or completely inexperienced" (!!!) consumer would be confused. Although the decision was based on the photos of the products, this Class 46 member found over the internet (but cannot be sure that they were the actual products involved), does not seem unjustified, its wording is somewhat "advanced", in view of the previous case law on the notion of average consumers.

Generally, Greek courts set - at least in the wording of the judgments - a relatively lower (in comparison with community courts) threshold of experience and attention characterizing the average consumer. However, in practice, if one looks at the actual products involved in the relevant cases, there essentially is a case-by-case approach and many different results. In another recent judgment (No. 1009/2008), the Multi-Member First Instance Court of Athens also appears to adopt a similar view. It's hard to say whether a real change in the case law is being formulated or whether the particular facts of the two cases allowed this more EU-inspired approach.