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Design Right Case

Written by Corinne Day on 10 January 2008

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The Court of Appeal in the case of Proctor & Gamble v Reckitt Benckiser has delivered an important judgement regarding the scope and interpretation of registered community design rights.

The case arose when Proctor & Gamble accused Reckitt Benckiser of copying its design rights in its Febreze product (an air freshener). Reckitt had produced a design for its Airwick air freshener product which Proctor & Gamble argued was essentially the same as the design which it had created for Febreze. At the first hearing, Proctor & Gamble sued for infringement of its registered design and Reckitt counter claimed, arguing that the design was invalid. It was held that the design was valid, and had been infringed by Reckitt. However, on Wednesday 10 October 2007, the Court of Appeal reversed this decision and held that the Airwick deisgn did not infringe the Febreze design.The Court of Appeal did however agree with the previous decision that the design was valid.

Jacob LJ held that the High Court judge had erred in principle on the issue of infringement. Article 10 of the Regulation states that 'The scope of the protection conferred by a Community design shall include any design which does not produce on the informed user a different overall impression'. Thus the main questions for the Court were 'what constitutes an informed user?' and 'how should a different overall impression be applied?' Jacob LJ laid down three factors which should be taken into consideration when determining 'different overall impression'. These were 1) The more novel the registered design the more significant the overall impression is likely to be and the more room there is for differences which do not create a different overall impression; 2) The court must 'don the spectacles of the informed user' and; 3) The overall impression of the registered design and the alleged infringement must be identified with care and thought given the level of generality that would be adopted.

Jacob LJ subsequently held that the shape of the Airwick head differed to the Febreze design, as well as the necks and triggers of the products. Therefore, the Airwick product did create a different overall impression on the informed user.

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