Court of Justice Speaks on ‘Informed User’

Yesterday, the Court of Justice of the European Union handed its first important design matter case – PepsiCo v Grupo Promer Mon Graphic C-281/10. In its ruling, the Court provides us with quite interesting guidelines on interpreting the concept of ‘informed user’.

53      It should be noted, first, that Regulation No 6/2002 does not define the concept of the ‘informed user’. However, as the Advocate General correctly observed in points 43 and 44 of his Opinion, that concept must be understood as lying somewhere between that of the average consumer, applicable in trade mark matters, who need not have any specific knowledge and who, as a rule, makes no direct comparison between the trade marks in conflict, and the sectoral 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.
54      It must be held that it is indeed that intermediate formulation that was adopted by the General Court in paragraph 62 of the judgment under appeal. This is, moreover, illustrated by the conclusion drawn from that formulation by the General Court in paragraph 64 of the judgment under appeal, in identifying the informed user relevant in the present case as capable of being a child in the approximate age range of 5 to 10 or a marketing manager in a company that makes goods which are promoted by giving away ‘pogs’, ‘rappers’ or ‘tazos’.
55      Second, as the Advocate General observed in points 51 and 52 of his Opinion, it is true that the very nature of the informed user as defined above means that, when possible, he will make a direct comparison between the designs at issue. However, it cannot be ruled out that such a comparison may be impracticable or uncommon in the sector concerned, in particular because of specific circumstances or the characteristics of the devices which the designs at issue represent.
56      Therefore, the General Court cannot reasonably be criticised as having erred in law on the ground that it assessed the overall impression produced by the designs in conflict without starting from the premiss that an informed user would in all likelihood make a direct comparison of those designs.
57      That is true all the more so since, in the absence of any precise indications to that effect in the context of Regulation No 6/2002, the European Union legislature cannot be regarded as having intended to limit the assessment of potential designs to a direct comparison.
58      It follows that, even if the General Court’s formulation – in paragraph 77 of the judgment under appeal – that ‘that similarity would not be remembered by the informed user in the overall impression of the designs at issue’ might indicate, when taken out of context, that the General Court based its reasoning on an indirect method of comparison based on an imperfect recollection, it does not reveal any error on the General Court’s part.
59      Third, as regards the informed user’s level of attention, it should be noted that, although the informed user is not the well-informed and reasonably observant and circumspect average consumer who normally perceives a design as a whole and does not proceed to analyse its various details (see, by analogy, Case C‑342/97 Lloyd Schuhfabrik Meyer [1999] ECR I‑3819, paragraphs 25 and 26), he is also not an expert or specialist capable of observing in detail the minimal differences that may exist between the designs in conflict. Thus, the qualifier ‘informed’ suggests that, without being a designer or a technical expert, the user knows the various designs which exist in the sector concerned, possesses a certain degree of knowledge with regard to the features which those designs normally include, and, as a result of his interest in the products concerned, shows a relatively high degree of attention when he uses them.
60      Thus, the use of the words ‘easily perceived’ in paragraph 83 of the judgment under appeal must be understood in a broader context as simply providing clarification as to the greater degree of curvature displayed by the contested design. Since the General Court adopted a correct approach in defining the informed user, it cannot be inferred that the words used in paragraph 83 of the judgment under appeal, by themselves, mean that the informed user’s level of attention had been incorrectly assessed by the General Court.

Huťko always loved all open legal concepts such as bad faith, average consumer or contrary to public policy or to accepted principles of morality, as they make the law more creative for us lawyers.

Small Update. Birds & Birds report on Dyson Limited v Vax Limited [2011] EWCA Civ 1206, which applies some principles developed in PepsiCo v Grupo Promer Mon Graphic C-281/10.

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