Registered Design law is concerned with monopolies in designs.
The bar is to be raised higher when considering what an informed user considers to be the overall impression than say trademark law. The rationale behind trademark law is to prevent consumer confusion or deception. With registered design law the whole point of protecting a design is to protect that design as a design. Jacob pointed out “so what matters is the overall impression created by it: will the user buy it, consider it or appreciate it for its individual design?”
In Lloyd Schuhfabrik Meyer V Klijsen Handel, Case C-342/97 the ECJ at para 25 said that in the case of trademarks” the perception of marks in the mind of the average consumer of the category of goods or services in question plays a decisive role in the global appreciation of the likelihood of confusion. The average consumer normally perceives a mark as a whole and does not proceed to analyse its various details”
Jacob considered that the informed user of design law “is more discriminating”.
He made reference to the Higher Provisional Court in Vienna, which had previously held that the Claimant’s design was not infringed by the Air-Wick product, it said:
“The ‘informed user’ will, in the view of the Appeals Court, have more extensive knowledge than an “average consumer in possession of average information, awareness and understanding” in particular he will be open to design issues and will be fairly familiar with them”.
So once an informed user is identified the next question is to ask whether the accused product produces “a different overall impression” to such a person? In registered design law the test is whether a design is made which is not substantially different from the design you are seeking to protect.