The protection of designs is provided for in, among other regulations, the Community Design Regulation. Design protection includes several terms that the European Court of Justice is now providing more clarity on. For instance, the reference person in design right law is currently being explained. This is the ‘informed user’ from whom must be tested as to whether a design is valid (whether the design has individual character) and what the scope of the protection of the design is. Finally, the Court discusses the judicial review of designs itself.

The Regulation does not provide any definition of the term ‘informed user’. The Court explains this user as a category of users lying somewhere between that of the average consumer – applicable in the field of trademark law – of whom no specific knowledge whatsoever is expected and who as a rule makes no direct comparison between the trademarks in conflict, and the sectoral expert with detailed technical expertise: ‘Thus, the concept of the informed user may be understood as referring, not to a user of average attention, but to a particularly observant one, either because of his personal experience or his extensive knowledge of the sector in question.’

The informed user shall, due to his nature, compare the relevant designs in a direct manner if possible, but it is not ruled out that such a comparison is not possible or is unusual in the relevant sector, in particular due to either specific circumstances or the characteristics of the objects to which the relevant designs relate. A method of indirect comparison between designs based on an incomplete memory is sanctioned by the ECJ.

The Court also discusses the level of attention of the informed user. Without being a designer or a technical expert, he does know the various designs existing in the relevant sector and has a certain knowledge relating to the elements that these models generally contain. When using the relevant products, he has a rather high level of attention as a result of his interest therein.

As regards the judicial review and the comparison of designs, the products actually traded to which these designs relate may be taken into consideration in the assessment of the general impression created by the relevant designs. Furthermore, if in the judicial assessment the designs in conflict – as these are listed in the registrations – are included, so that the comparison of the actual products is solely used for comparison purposes, that is a proper approach for the judicial review of the designs.

For more information about this case, read our previous reports thereon here.

Joost Becker