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Journal of Intellectual Property Law & Practice Advance Access originally published online on April 17, 2008
Journal of Intellectual Property Law & Practice 2008 3(6):376-385; doi:10.1093/jiplp/jpn056
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© The Author (2008). Published by Oxford University Press. All rights reserved

Some clarity, some confusion: 12 P&G v Reckitt Benckiser decisions help explain registered Community designs

David Stone*
Legal context: A dispute over the shape of air freshener packaging has provided 12 judgments in 6 EU member states that discuss the still relatively new Community Design Regulation. The decisions provide some guidance until the many interpretational issues in the Regulation can be definitively clarified by the European Court of Justice.

Key points: For now, the decisions establish that:

  • The tests for novelty and ‘individual character’ are separate tests;
  • The test for infringement is the flipside of the test for validity;
  • The ‘informed user’ is an experienced user of the product and not a design expert; and
  • The test for establishing ‘overall impression’ remains confused.

Practical significance: The decisions demonstrate that Registered Community Designs can be a powerful weapon in the fight against knock-off products, although not consistently across the EU.

Key Words: Council Regulation EC 6/2002 created registered Community designs. • This article discusses 12 decisions of Community Design Courts which, in a single dispute, help to establish the meaning of several key expressions in the Regulation. • These include that the tests for novelty and ‘individual character’ are separate tests; the test for infringement is the flipside of the test for validity; the ‘informed user’ is an experienced user of the product and not a design expert; and the test for establishing ‘overall impression’ remains confused.

Correspondence: * Partner, Howrey LLP, London, and chair of the Designs Team of MARQUES, the Association of European Trade Mark Owners. The opinions expressed are the author's and should not be attributed to MARQUES, Howrey, or any of its clients. Readers may contact the author at stoned{at}howrey.com. Howrey acted for Procter & Gamble in the proceedings: the author was not involved. The author would like to thank Anne Steeb for her assistance with translations.


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