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Must Have Individual Character

Written by Jane Coyle on 07 March 2008

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Individual character is paramount to registered designs (section 1B(1), RDA). This means that it must give a different overall impression from previous designs to the "informed user", who may not be a design expert but is a person who is familiar with the products in the field (section 1B(3), RDA).This test is wider and more complicated than the novelty test under section 1B(2) of the RDA, which focuses only on whether or not a design has been previously published. The meaning of overall impression and the "informed user" was considered by the Court of Appeal in Procter & Gamble Company v Reckitt Benckiser (UK) Limited [2007] EWCA Civ 936.

In assessing individual character, the amount of freedom in producing the design will be considered. For example, a functional item will have considerably less potential for creativity than a decorative item, so that fewer differences from pre-existing designs are likely to be required for a functional design to qualify as having individual character. The concept of design freedom was considered by the Court of Appeal in the context of the CDR in Procter & Gamble Company v Reckitt Benckiser (UK) Limited [2007] EWCA Civ 936. Features of a product that are dictated by its function will be disregarded in assessing whether a product has individual character. Specifically, "must-fit" items are excluded from protection, although the shape of a connection may be protectable in its own right. As was the case for novelty, in the past the Designs Registry did not automatically examine a design for individual character. In line with the new rules on the substantive examination for novelty, the 2006 Order has removed the formal requirement for a substantive examination for individual character for applications made on or after 1 October 2006.

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