Case No. IP-2021-000119

The law27.The characteristics of the informed user were summarised by Judge Birss QC in Samsung Electronics (UK) Ltd v Apple Inc [2012] EWHC 1882 (Pat) in a passage of his judgment quoted and approved on appeal ([2012] EWCA Civ 1339, at [10]):“[33] The designs are assessed from the perspective of the informed user. The identity and attributes of the informed user have been discussed by the Court of Justice of the European Union in PepsiCo Inc v Grupo Promer Mon-Graphic SA (C-281/10 P) [2012] F.S.R. 5 at paragraphs 53 to 59 and also in Grupo Promer v OHIM (T-9/07) [2010] E.C.D.R. 7, (in the General Court from which PepsiCo was an appeal) and in Shenzhen Taiden v OHIM (T-153/08), judgment of 22 June 2010.[34] Samsung submitted that the following summary characterises the informed user. I accept it and have added cross-references to the cases mentioned:He (or she) is a user of the product in which the design is intended to be incorporated, not a designer, technical expert, manufacturer or seller (PepsiCo paragraph 54 referring to Grupo Promer paragraph 62; Shenzhen paragraph 46).However, unlike the average consumer of trade mark law, he is particularly observant (PepsiCo paragraph 53);He has knowledge of the design corpus and of the design features normally included in the designs existing in the sector concerned (PepsiCo paragraph 59 and also paragraph 54 referring to Grupo Promer paragraph 62);He is interested in the products concerned and shows a relatively high degree of attention when he uses them (PepsiCo paragraph 59);He conducts a direct comparison of the designs in issue unless there are specific circumstances or the devices have certain characteristics which make it impractical or uncommon to do so (PepsiCo paragraph 55).[35] I would add that the informed user neither (a) merely perceives the designs as a whole and does not analyse details, nor (b) observes in detail minimal differences which may exist (PepsiCo paragraph 59).”This case28.The parties were agreed that on the present facts the user is a consumer, not a supermarket buyer. It follows from the identification of the relevant sector that the informed user is a member of the UK public who purchases and consumes spirits and liqueurs.29.As stated in PepsiCo, the informed user is more observant than the average consumer of trade mark law, exercising a relatively (relative to the average consumer, presumably) high degree of attention to spirit and liqueur bottles when using them.30.The direction given by the CJEU that the informed user should where possible be taken to make a direct comparison of the designs in issue (PepsiCo, para. 55) is awkward unless the informed user is assumed to have constant access to the register, in which case invariably there will be a direct comparison. The CJEU may have had it in mind that the product marketed by the proprietor of the registered design can be taken as a proxy for the registered design, but that is difficult to accept, see Samsung at [4], quoted above.31.To the extent that it matters, I think that M&S’s bottle and Aldi’s bottle are used at home, as opposed to being used at two different points of purchase, so there would be an opportunity for direct comparison.