The 'Overall Impression' Test
Written by Aneela Akbar on 23 May 2012« Return to Reading Room
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.
Want to speak
Complete the form below and we’ll call you back free of charge.