Case No. IP-2021-000119

53.The key stage in assessing infringement, having done the groundwork of the other stages, is the comparison of the overall impression produced by the registered design with that produced by the accused design, as seen through the eyes of the informed user. The Court of Appeal has given guidance about this in Procter & Gamble Co v Reckitt Benckiser (UK) Ltd [2007] EWCA Civ 936, at [35], per Jacob LJ, with whom May and Dyson LJJ agreed:“i) For the reasons I have given above, the test is ‘different’ not ‘clearly different.’ ii) The notional informed user is ‘fairly familiar’ with design issues, as discussed above.iii) Next is not a proposition of law but a statement about the way people (and thus the notional informed user) perceive things. It is simply that if a new design is markedly different from anything that has gone before, it is likely to have a greater overall visual impact than if it is ‘surrounded by kindred prior art.’ (Judge Fysh's pithy phrase in Woodhouse UK plc v Architectural Lighting Systems [2006] RPC 1, para 58). It follows that the ‘overall impression’ created by such a design will be more significant and the room for differences which do not create a substantially different overall impression is greater. So protection for a striking novel product will be correspondingly greater than for a product which is incrementally different from the prior art, though different enough to have its own individual character and thus be validly registered.iv) On the other hand it does not follow, in a case of markedly new design (or indeed any design) that it is sufficient to ask ‘is the alleged infringement closer to the registered design or to the prior art’, if the former infringement, if the latter not. The tests remains ‘is the overall impression different?’v) It is legitimate to compare the registered design and the alleged infringement with a reasonable degree of care. The court must ‘don the spectacles of the informed user’ to adapt the hackneyed but convenient metaphor of patent law. The possibility of imperfect recollection has a limited part to play in this exercise.vi) The court must identify the ‘overall impression’ of the registered design with care. True it is that it is difficult to put into language, and it is helpful to use pictures as part of the identification, but the exercise must be done. vii) In this exercise the level of generality to which the court must descend is important. Here, for instance, it would be too general to say that the overall impression of the registered design is ‘a canister fitted with a trigger spray device on the top.’ The appropriate level of generality is that which would be taken by the notional informed user.viii) The court should then do the same exercise for the alleged infringement. ix) Finally the court should ask whether the overall impression of each is different. This is almost the equivalent to asking whether they are the same – the difference is nuanced, probably, involving a question of onus and no more.”54.Jacob LJ’s point (iii) introduces consideration of the design corpus into the assessment of infringement.55.In Cantel Medical (UK) Limited v ARC Medical Design Limited [2018] EWHC 345 (Pat) I said:“[170] Designs which are strikingly new in every way will be unusual. More often some features will be commonly found in the design corpus, others not. In such a case the correct approach is to give little or no weight to common features. In Grupo Promer Mon Graphic SA v OHIM (Case T-9/07) EU:T:2010:96; [2010] ECDR 7, the General Court said at [72]:‘… in so far as similarities between the designs at issue relate to common features…, those similarities will have only minor importance in the overall impression produced by those designs on the informed user.’”