The claimant alleged infringement of its design right by the defendants’ Air-Wick product. The court considered the approach necessary in asking whether a European Community design had been infringed.
Held: Looking at an article for this purpose required a different viewpoint from checking for trade mark infringement. The purpose was different. The court should look through the eyes of an informed user, with a more discriminating view than the average consumer and who was to some extent familiar with design issues. In this case the similarities were of too general a nature. The judge should have looked for and stated what was the overall impression created by the article said to be infringing.
Jacob LJ said: ‘The most important things in a case about registered designs are:
(1) the registered design:
(2) the accused object; and
(3) the prior art.
nd the most important thing about each of these is what they look like.’ and ‘[t]he point of protecting a design is to protect that design as a design. So what matters is the overall impression created by it: will the user buy it, consider it or appreciate it for its individual design?’
Judges:
May LJ, Dyson LJ, Jacob LJ
Citations:
[2007] EWCA Civ 936, Times 17-Oct-2008, [2008] FSR 8, [2008] ECDR 3, [2008] Bus LR 801
Links:
Jurisdiction:
England and Wales
Citing:
Appeal from – Procter and Gamble Company v Reckitt Benckiser (UK) Ltd ChD 13-Dec-2006
It was alleged that a Community registered design comprising a series of monochrome line drawings of a spray canister was infringed by a product called ‘Air Wick’. The claimant argued that, in light of the registration, only the product shapes . .
Cited by:
Approved – Magmatic Ltd v PMS International Ltd CA 28-Feb-2014
The parties disputed an alleged infringement of a registered design in the Trunki, a child’s suitcase designed to be ridden on, and other infringements of copyright in the packaging. PMS now appealed on the issue of whether the defendant’s Kiddee . .
Lists of cited by and citing cases may be incomplete.
Intellectual Property
Updated: 12 July 2022; Ref: scu.259768