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In 2012 Member States and the European Parliament agreed on the "patent package" - a legislative initiative consisting of two...

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In Procter & Gamble v Reckitt Benckiser [2007] EWCA Civ 936, concerning the Febreze fabric conditioner spray, the UK Court of Appeal gave guidance on the approach to infringement of Community Designs. Whilst many aspects of the case are of interest, one key point is the treatment of the “informed user”, which ultimately sets the scope of the design and the threshold for validity. The lead judgment borrows from the findings of the Austrian Court of Appeal in a parallel interlocutory action there. Here are the key findings on the “informed user”:

  1. She is aware of the “existing design corpus.” (though not an “archival mind” like the skilled person of the patent world); she “has experience of other similar articles” and is therefore “reasonably discriminatory”.

  2. She is “alert to design issues”.

  3. She has more extensive knowledge and is more discriminating than the “average consumer” used as a test person in trade mark cases. Thus, a design generally has a narrower scope than a trade mark.

  4. She is less liable to “imperfect recollection” than the “average consumer” of trade marks, so generally the comparison is performed with the design and the infringement side by side.

Subsequent UK court decisions have followed this decision, as did the Irish High Court in Karen Millen v Dunnes [2007] IEHC 449 in which the judge held that the “informed user” was “a woman with a keen sense of fashion, a good knowledge of designs of women’s tops and shirts previously available to the public, alert to design and with a basic understanding of any functional or technical limitations on designs for women’s tops and shirts.”
Obviously, the nature of the informed user will depend on the nature of the design, but the UK Court of Appeal does appear to us to accord a higher degree of knowledge and attention to the informed user than the OHIM Appeal Boards have so far done.
As will be seen above, for the OHIM Boards the test person may be a child, may care more about taste than appearance, and may be informed only to the extent of browsing websites or catalogues, or regularly holding conference calls - in much the same manner, one supposes, as OHIM personnel who have to decide a case without extensive evidence by recourse to precisely such material.
The consequence will be narrower designs, which are harder to invalidate.  Wise defendants may therefore attack validity at OHIM whilst defending infringement in the UK.