In Procter & Gamble Co v Reckitt Benckiser (UK) Ltd [200] EWCA Civ 936, the Court of Appeal examined, for the first time, the nature and scope of the Registered Community Design Right.

In February 2006, Procter & Gamble sued Reckitt Benckiser over the design of the container of its air freshener spray, Air- Wick, claiming that it infringed Procter & Gamble’s registered Community design relating to a Febreze aerosol canister. Under Article 10.1 of Council Regulation EC 6/2002 regarding Community Design Registration (the Community Design Regulation), Community designs are protected from infringement by “any design which does not produce on the informed user a different overall impression” to the Community design.

The High Court ruled in favour of Procter & Gamble, finding that the two designs were too similar. The Court of Appeal overturned this decision. Jacob LJ of the Court of Appeal provided general guidance on the application of Article 10.1. The “informed user” of design law should be considered to be more discriminating than the “average consumer” of trade mark law and be fairly familiar with design issues. The average consumer of trade mark law is considered to be likely to spend less time looking at an article in detail and may not remember fully the appearance of an article. As a result, the possibility of confusion is greater and features that might infringe a registered trade mark might not infringe a registered design.

The overall impression created by the two designs was what mattered in determining whether there was an infringement. The overall impression of a design is what strikes the informed user when they carefully look at the product, rather than their recollection of the product after the viewing. A product with a design that produces a different overall impression will be enough to avoid a charge of infringement.

That difference does not need to be a “clear” difference because an informed user would be able to discriminate that the difference was there. The main features of the design should be considered at a sufficient level of detail to properly consider what the overall impression given to an informed user would be. One example of such a feature would be the quality of the article.

In this case, there was sufficient difference of detail between the two aerosol cans for the Air-Wick can to be considered non-infringing. This case provides useful guidance on the interpretation of design law