European law is having an ever-increasing influence on UK law and one example is the creation of the Registered Community Design (RCD). This allows the inventor of a design to have the exclusive right to it for 25 years from the date of registration. One advantage of having an RCD is that the registration process is inexpensive.
To obtain RCD status for a design, the design must be new and of ‘individual character’ compared with designs previously offered to the public. An RCD is infringed by a design which would not produce a ‘different overall impression’ on an ‘informed user’.
In a recent Court of Appeal case, consumer goods giant Procter and Gamble claimed that the RCD of its ‘Febreze’ air freshener was infringed by the ‘Air Wick’, marketed by Reckitt Benckiser.
The Court ruled that for an RCD application to be valid, the new design had to ‘clearly differ’ from the ‘prior art’. However, under the Directive creating RCDs, an item will not infringe upon a registered design if it creates a different overall impression.
The other question that needed to be decided was what is meant by an ‘informed user’. The Court dealt with this at length, but concluded that an informed user would have a quite high level of knowledge about the applicable design issues and would consider them carefully. In particular, the Court considered that an informed user would be aware of the prior art applicable in the sector concerned.
Applying these criteria, the Court declined to accept that the Air Wick was an infringement of the Febreze RCD. Most of the common design features were functional in nature and the overall impression of the two products was different. Interestingly, in most European courts the judges have reached the opposite conclusion.
If you wish to protect a new and individual design, obtaining an RCD will normally be a sensible step to take. Contact <<CONTACT DETAILS>> for advice on all matters relating to protection or exploitation of intellectual property.
Partner Note
The Procter & Gamble Co v Reckitt Benckiser (UK) Ltd. [2007] EWCA Civ 936. See http://www.lawreports.co.uk/WLRD/2007/CACIV/oct0.3.htm.