“A design shall be protected by a design right to the extent that it is new and has individual character”
Inevitably, this has led to disputes as to what individual character means, and what amounts to a design with individual character. The preamble to the directive clarified the issue a little by stating that:
“the assessment as to whether a design has individual character should be based on whether the overall impression produced on an informed user viewing the design clearly differs from that produced on him by the existing design corpus, taking into consideration the nature of the product to which the design is applied or in which it is incorporated, and in particular the industrial sector to which it belongs and the degree of freedom of the designer in developing the design”
As did article 5:
- A design shall be considered to have individual character if the overall impression it produces on the informed user differs from the overall impression produced on such a user by any design which has been made available to the public before the date of filing of the application for registration or, if priority is claimed, the date of priority.
- In assessing individual character, the degree of freedom of the designer in developing the design shall be taken into consideration.
Of course this gives rise to the question of who is an informed user – a problem similar to the person of ordinary skill in the art, skilled addressee, or even moron-in-a-hurry standard. The Court of Justice of the European Union has described thus Informed user as:
“lying somewhere between that of the average consumer, applicable in trademark matters, who need not have any specific knowledge and who, as a rule, makes no direct comparison between the trademarks at issue, and the sectorial expert, who is an expert with detailed technical expertise. Thus, the concept of the ‘informed user’ may be understood as referring not to a user of average attention, but to a particularly observant one, either because of his personal experience or his extensive knowledge of the sector in question.”
Whether this exposition will be helpful remains to be seen.