In Procter & Gamble Co v Reckitt Benckiser (UK) Ltd the Court of Appeal confirmed the ‘overall different impression’ test for individual character in the context of a Community Design Registration infringement claim. The infringement was relating air freshener spray containers and the Court of Appeal provided the following guidance:
- It is sufficient just to have a different overall impression. It is not required to be ‘clearly’ different.
- An informed user would be taken as being fairly familiar with the design issues.
- For products that are novel, the protection would be correspondingly greater compared to those only incrementally different from prior art.
- The test for validity of the registered design remained ‘is the overall impression different?’
- The court needed to identify the ‘overall impression’ with some care.
- The level of generality was very important and should be that of the notional informed user, rather than the casual customer.
- The court should then repeat this exercise with the alleged infringed design.
- The court should ask finally whether the overall impression of each design was different.
The judge in the prior case held that there was infringement and took the similarities at a too general a level. On the other hand the Court of Appeal the court of appeal held that the informed user would have formed different overall impressions of the product and there was no infringement.
