General printing on registered designs
But how different is different enough? The law goes on to say that a design is individual if it “produces a different overall impression on the informed user.” Arguably, this definition asks more questions than it answers, questions that have occupied the minds of lawyers and judges in various infringement and validity cases over the years. The individuality test may never be truly objective, but there is now reasonable case law outlining how an assessment should be made, so a consistent and predictable approach should be possible.
Who is the informed user?
The informed user is reasonably observant and perceptive, is a regular user of the type of items in question, and has extensive knowledge of what is available on the market. The person we are looking for is not an “average consumer”, he is much better informed than that. On the other hand, the informed user is definitely a use. He himself is not a designer and has no special technical knowledge. Perhaps a useful characterization of the type of person we are trying to imagine is that he is a “picky customer.”
Although it can sometimes be difficult to find a real person who fits the description of the somewhat hypothetical “informed user”, practical market realities must be taken into account. For example, the informed user of a child’s toy must surely be a child, and the overall impression assessment should then include a realistic view of how attentive the informed user really is.
Restrictions in the designer
According to the European Regulation, “when assessing the individual character, the degree of freedom of the designer to develop the design shall be taken into account.” If the designer has little freedom, small differences can give rise to an individual character.
The degree of freedom of the designer comes from the practical considerations that must be applied when designing products for use. The designer of a product that has some functional purpose will have much less design freedom than the designer of a purely ornamental product. Note that this is not the same as excluding parts that are dictated “solely by technical function” (see below) – the designer is constrained not only by what won’t actually work, but also by what clearly is. a bad design. For example, a handle must be ergonomic and comfortable. The device would still work if the handle were awkward and awkward, but nevertheless the designer is constrained by the need for good design.
exclusions
There are various exclusions that apply to the types of products that can be protected by registered designs. Therefore, these characteristics must be excluded from an assessment of individual character. Parts that are “solely dictated by technical function”, parts that “must fit” into another product (for example, connectors), and component parts of complex products that are not visible in normal use are all excluded from protection. and are therefore irrelevant to individual character.
Similarities and differences
If the question of overall impression is being seriously considered, there are presumably two designs that have some similarities and some differences. Lawyers who advocate a different overall impression often like to present a long list of differences. After reading their arguments (without the benefit of pictures), you might be surprised to find that two products that are seemingly so different actually make the same overall impression. But what must always be kept in mind is that it is the general impression of the design being tested. If the similarities are more visually striking than the differences, then the fact that the list of differences is long is irrelevant. What you have to compare is the complete design.
Too much emphasis should not be placed on verbal analysis of the similarities and differences between two designs. Jacob LJ has repeatedly emphasized that the most important thing about the registered design, the alleged infringement and the state of the art is what they seem.