Case No. IP-2021-000119

77.The task of the court is not to identify the closest prior art and then to decide whether the accused design is closer to that prior art or closer to the registered design, see Procter & Gamble above at [35(iv)]. Particularly where the closest prior art is, as here, among hundreds of members of the design corpus, its influence on the assessment may be limited.78.Relevant to this, Jacob LJ also observed in Procter & Gamble that the design corpus does not have a bearing on the assessment of infringement because of any statutory provision or other rule of law. It arises from the way that human observation works. There is a continuous spectrum of possibilities but the more strikingly different the registered design is from the design corpus generally and the fewer in the corpus that are close to it in appearance, the more likely it is that an accused design with something of the registered design’s unusual features will produce the same overall impression.79.I did not understand it to be in dispute that Aldi’s bottle has a “botanics” shape which is either identical to that of the RDs in suit or so close that it is hard to see any real difference (see the illustrations above).80.The features that the informed user would note as being in common between the RDs in suit and the Aldi bottle are these:(1)The identical shapes of the two bottles. The informed user would pay little attention to the fact that both have in part straight sides. That is true of the vast majority of the spirit bottles shown in the evidence. The informed user would take into account that for economic reasons the range of bottle shapes for spirits and liqueurs does not extend to every functional and aesthetic possibility. However, this would not detract from the apparent identicality in shape when measured against the design corpus as a whole.(2)What appear to be the identical shapes of the two stoppers.(3)A winter scene over the entirety of the straight portion of the side, consisting in one case entirely, and in the other case mostly, of tree silhouettes.(4)In the case of UK 80 and 84, a snow effect.(5)In the case of UK 82 and 84, an integrated light.81.In my judgment and with the design corpus in mind, each of those similarities would appear significant to the informed user and cumulatively they would be striking.82.There are differences. Aldi relied on these:(1)The winter scene of the RDs in suit is in white only and features a stag and a doe. On the Aldi bottles the scene is in white and a colour with trees only.(2)The Aldi bottle has the “Infusionist” branding. The RDs in suit have none.(3)The foregoing two features of the Aldi bottle give it a front. There is no front to the RDs in suit.(4)The Aldi winter scene is brighter and busier than that on the RDs in suit.(5)The Aldi stoppers have a watch strap label with the Aldi logo on the top, the RDs in suit do not.(6)The Aldi stoppers are darker in shade than those of the RDs in suit.83.Going back to the statutory test, it is whether the RDs in suit and the Aldi bottles produce a different overall impression. In my judgment they do not because of the features they have in common, set out above. The differences to which Aldi points are there, but they are differences of relatively minor detail which do not affect the lack of difference in the overall impressions produced by the Aldi bottles on the one hand and each of the RDs in suit on the other.