In 2002, new laws introduced via Council Regulation EC/6/2002 marked a major change to the law of designs, both in the EU and the UK. From that point onwards, the scope of protection for designs was significantly expanded to include colours, ornamentation and other two dimensional design features which had hitherto been excluded.

However, many of the terms used in the Regulation were not very precise or clear as to their meaning. Inevitably, lawyers and design owners have looked to the Courts to provide guidance on interpretation. But decisions have been few and far between.

The English High Court has now had a further stab at interpreting the Regulation in Proctor & Gamble v Reckitt Benckiser UK, a case involving a disputed design for air fresheners. The decision of Mr Justice Lewison provides useful guidance on how to assess infringement.

Under the Regulation, whether or not there is infringement is determined by whether the disputed design creates a different “overall impression” on the “informed user” when compared to the protected design.

In Proctor & Gamble, the judge held that the “informed user” is more than just an ordinary consumer but less knowledgeable than someone with an “archival” mind i.e. he is someone who is familiar with the basic design features relevant to the product in question and someone who is aware of prior art known in the normal course of business. The judge also held that the “overall impression” of a design is what sticks in the mind after it has been carefully viewed. It is important to note that this is different to the concept of “imperfect recollection” that applies in cases of trade mark infringement.