Individual character

Individual character is the second condition of protection of a design, after novelty. A design has individual character where the overall visual impression it produces on the informed user differs from that produced by any design disclosed before the filing or priority date. The condition is laid down in Article L. 511-4 of the French Intellectual Property Code and in the EU Design Regulation. Individual character requires more than novelty: beyond being different, the design must be perceived as different.

Assessing individual character

The informed user is a person who knows the products of the sector concerned and shows a particular degree of attention, without being an expert or a mere consumer. The comparison is made globally, between the contested design and each item of prior art taken individually, having regard to the features visible in normal use. The designer’s degree of freedom is also taken into account: where technical, regulatory or functional constraints limit the possibilities, modest differences suffice to establish individual character, whereas great freedom calls for more marked differences.

Individual character in litigation

Individual character plays a twofold role. Its absence is a ground for invalidity, frequently raised by the defendant to an infringement action, who produces prior art from catalogues, trade fairs or databases. The same concept also serves to assess infringement: the owner may prohibit any design that does not produce on the informed user a different overall visual impression. The scope of protection is thus proportionate to the distance between the design and the prior art. The case law of the EUIPO and of the Court of Justice of the European Union has clarified these criteria.

Key points

In practice, a design close to existing shapes enjoys narrow protection, limited to near-identical copies, while a striking creation enjoys broad protection. A filing should therefore be prepared with an analysis of the prior art and careful thought about the views to be filed. The firm handles such disputes, as presented in the entry on design infringement and as part of its intellectual property practice.