The art of writing is the art of discovering what you believe.
Gustave Flaubert

Sunday 30 October 2011

Informed user (revised, updated definition)

The hypothetical person upon whom, in the EU, a design must produce an impression different from that produced on the same person by any other design, if that design is to be considered to possess the necessary individual character to be registered (under the Registered Designs Act or the Community designs regulation) or to be protected by Community unregistered design right. In Case T-9/07 Grupo Promer Mon Graphic SA v Office for Harmonisation in the Internal Market [2010] ECR II-0000 the General Court of the European Union held at [62]:
It must be found that the informed user is neither a manufacturer nor a seller of the products in which the designs at issue are intended to be incorporated or to which they are intended to be applied. The informed user is particularly observant and has some awareness of the state of the prior art, that is to say the previous designs relating to the product in question that had been disclosed on the date of filing of the contested design, or, as the case may be, on the date of priority claimed.
In Case T-153/08 Shenzhen Taiden v Office for Harmonisation in the Internal Market [2010] ECR II-0000 the General Court held:
46. With regard to the interpretation of the concept of informed user, the status of "user" implies that the person concerned uses the product in which the design is incorporated, in accordance with the purpose for which that product is intended.
47. The qualifier "informed" suggests in addition that, without being a designer or a technical expert, the user knows the various designs which exist in the sector concerned, possesses a certain degree of knowledge with regard to the features which those designs normally include, and, as a result of his interest in the products concerned, shows a relatively high degree of attention when he uses them.
48. However, contrary to what the applicant claims, that factor does not imply that the informed user is able to distinguish, beyond the experience gained by using the product concerned, the aspects of the appearance of the product which are dictated by the product‟s technical function from those which are arbitrary.
In Woodhouse (UK) plc v Aquila Design [2005] ECPCC 25, [2006] RPC 1 the Patents County Court considered who the informed user should be. The case concerned street lamps. The court took the view that the informed user should be a regular user of articles of the sort covered by the design, a customer or user but not a manufacturer of them nor an average man in the street. Being informed, the user would be aware of what is and has recently been in the market. As design law is concerned with appearance not function, the informed user will consider whether it makes a different impression on him by considering only appearance and not technology. Moreover, the comparison was to be carried out with the articles in situ, 8-10 metres above the viewer’s head, notwithstanding that a buyer would inspect them at ground level.

In  Dyson Ltd v Vax Ltd [2011] EWCA Civ 1206 Jacob LJ in the Court of Appeal noted (at para 15):
The important point to note is that the informed user is reasonably discriminatory (“a relatively high degree of attention”): not the same person as the average consumer of trade mark law.

No comments:

Post a Comment