Design

The Court of Appeal today clarified the scope of the Registered Community Design Right for the first time through Reckitt Benckiser's dispute with Procter & Gamble (P&G).

In February 2006, P&G sued Reckitt over the design of its Air Wick Odour Stop air spray freshener, claiming it infringed the Registered Community Design that P&G had obtained for its equivalent Febreze Air Effects product.

Under existing regulations, designs have to be both "novel" and "create a different overall impression on an informed user".

However, there has been confusion as to what constitutes an 'informed user'.

The High Court originally ruled in favour of P&G in November 2006, finding that the two air freshener designs were too similar.

However, at the Court of Appeal today (10 October), Lord Justice Jacob issued his judgement, which stated that there was a sufficient difference in detail between the two designs.

The Court of Appeal ruling in the Reckitt case sets out the 'informed user' test.

According to Lorna Brazell, a partner at law firm Bird & Bird, which represented Reckitt, the ruling says an 'informed user' is not a designer, but someone with "an awareness of design".

For example, an 'informed user' would recognise the functionality of the indent around the neck of a can, so it cannot be exclusive to a particular brand.

She said: "This is a sensible decision, hugely welcomed by lawyers and brand owners alike, and has set an important legal precedent not just in the UK but across Europe."