The primary piece of legislation covering the Community Unregistered Design Right (“CUDR”) is that set out in Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (“the Regulation”).
A CUDR must have individual character: “A design shall be considered to have individual character if the overall impression it produces on the informed user differs from the overall impression produced on such user by any design which has been made available to the public…before the date on which the design for which protection has been claimed has first been made available to the public.”
The “informed user” is not addressed in detail under the Regulation. Lord Justice Jacob in The Procter & Gamble Company v Reckitt Benckiser (UK) Limited provided a short discussion of the nature of the informed user. Lord Justice Jacob said this: “He/she is clearly not quite the same sort of person as the “person skilled in the art” of patent law. The equivalent to that person in the field of design would be some sort of average designer, not a user .”
Furthermore, recital 14 of the Regulation says this: “The assessment as to whether a design has individual character should be based on whether the overall impression produced on an informed user viewing the design clearly differs from that produced on him by the existing design corpus, taking into consideration the nature of the product to which the design is applied or in which it is incorporated, and in particular the industrial sector to which it belongs and the degree of freedom of the designer in developing the design.”
Commenting on recital 14 Lord Justice Jacob said this: “…a user who has experience of other similar articles will be reasonably discriminatory – able to appreciate enough detail to decide whether a design creates an overall impression which has individual character and whether an alleged infringement produces a different overall impression”.
On a reading of the Regulation and the judgment in The Procter & Gamble Company v Reckitt Benckiser (UK) Limited it is clear that the informed user is reasonably able to discriminate between the overall features of a design, he occupies a position above a consumer but he is no expert.