Tuesday, 30 March 2010

First design case in General Court: 'overall impression' and 'informed user'

Case T-9/07, Grupo Promer Mon Graphic SA v Office for Harmonisation in the Internal Market, PepsiCo Inc is a little bit of history, not very new (dating from 18 March) but still important - especially for a design law enthusiast like me. And, being in the process of bringing my designs lecture notes up to date for a CLT course next month, I need to do some work on it - and posting a note here can form part of that exercise.
The case, as cases in this area so often do, involved a design for an article of astonishing banality. Not an exhaust pipe, pig fender or slurry separator, but a 'metal rapper', 'tazo' (the Spanish word, apparently) or 'pog', a small disc used for promotional purposes (like the cards I used to collect when a child, though rather less informative: I learnt more from the 'flags of the world' cards that came with my chewing gum than I learnt at school during the same period). David Stone, writing in the Class 99 blog, identifies no fewer than 10 important points in the judgment: interested though I am in linguistics, and despite my sentimental fascination with Romania, I am not going to spend time considering where the Romanian (and French) language versions of the regulation differ from others.
The two points that strike me as most important are, first, the importance of the indication of product for the application of the overall impression test, and second, the identity of that elusive individual, the informed user.
When registering a design, an indication of the product is needed - but does not limit the scope of the protection given by the registration to that product. The Court took that view that the indication of product is something to be taken into account - but in the present case, where the articles to which the design was actually applied form a  particular category, it is proper to look at that narrower category. Although the registration mentioned 'promotional items for games' the Court (like the Board of Appeal) focused on pogs, rappers or tazos. This had a profound effect on the amount of design freedom enjoyed by the designer, and therefore on the way the overall impression test would work when considering whether there was a conflict. Design freedom being much more limited than it would have been if the wider category were referred to, the greater the distance from the state of the art needed in order to make a different overall impression.
On whom does this impression have to be made? This is the informed user in Community design law - neither amanufacturer nor a seller, the court held, to no great surprise. The informed user is particularly observant and has some awareness of the prior art, as the case law (includng the Court of Appeal's judgment in Proctor & Gamble v Reckitt Benckiser) suggests. In the present case, the product was an intermediate product - it advertised something else. Was the informed user the 5 to 10 year old end user or the intermediate trade user, the marketing executive using the intermediate product to market that other product? An interesting and important question - unfortunately, because it made no difference in this case, the court only had to note that it could be one or the other. At least we know it isn't the manufacturer or supplier.

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