On 20 October, the Court of Justice of the European Union (CJEU) issued its decision in an appeal brought by PepsiCo Inc. (PepsiCo) which sought to have set aside the judgment of the General Court of the European Union in the case involving the Spanish Grupo Promer Mon Graphic to annul the registration as community design of a particular category of promotional designs, namely “tazos”, “pogs” or “rappers”.
This decision, the first taken by the CJEU on the subject of community designs, establishes the concept of the “informed user”, not defined in the Community Regulation, essential when assessing the overall impression produced by products to compare.
Thus, PepsiCo claimed that in a direct comparison the informed user would have been able to distinguish the models easily, basically because one of them has two additional concentric circles, one of which is more curved in the centre.
However, the CJEU upheld the decision of the General Court, which had ruled that the informed user in this case would be a child in the approximate age range of 5 to 10 or the marketing manager in a company used to negotiate the purchase of promotional goods, also agreeing with the conclusions of the General Council that maintains that it is not always possible to make a direct comparison of products.
Thus, the Court concluded that the adjective ‘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.
Therefore, no technical expertise or experience in the matter is necessary. Although this is paradoxical in this case, it may benefit companies that see industrial design as a means for obtaining an economic, legally robust registration to be able to take action against third parties that may defend themselves with fraudulent registrations to avoid or delay actions brought for design infringement.