Overall visual impression

The overall visual impression is the test that governs both the validity and the scope of protection of a design. A design has individual character where the overall impression it produces on the informed user differs from that produced by any earlier design, and protection extends to any design which does not produce on that same user a different overall visual impression. The test is set out in Regulation (EC) No 6/2002 and in the French Intellectual Property Code.

The method of comparison

The assessment concerns the overall appearance of the products, considered as a whole. The court identifies the common features and the differences, then weighs them in the light of what attracts the informed user’s attention in the product concerned. The Court of Justice of the European Union accepts a direct comparison of the objects where possible, without ruling out a comparison based on imperfect recollection where direct comparison is impracticable. Features dictated by technical function and those that are commonplace in the sector carry little weight.

The designer’s freedom and the density of the prior art

The legislation requires account to be taken of the degree of freedom of the designer in developing the design. Where that freedom is limited by technical, regulatory or customary constraints, small differences suffice to produce a different overall impression. Conversely, in a field where freedom is wide, only marked differences make it possible to avoid similarity. The density of the prior art works in the same direction, a saturated sector making the informed user more attentive to nuances.

The test in litigation

The overall impression lies at the heart of design infringement actions as well as invalidity actions for lack of individual character. The debate draws on comparative photographs, evidence describing the prior art and, at times, opinions from professionals in the sector. Under French law, such infringement differs from copyright infringement, which requires the reproduction of the original features of the work, even though the principle of unity of art allows both grounds to be combined.

Key points

The overall visual impression measures both the validity of a design and the scope of its protection, always from the informed user’s point of view. It depends on the designer’s freedom and on the density of the prior art. Before taking action, a rigorous comparative file should be prepared, identifying the features that attract attention and those that are imposed by function or commonplace. An analysis of the prior market avoids overestimating the scope of a design in a crowded sector.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats is a patent litigation firm. Matters outside that field, such as trade marks, designs, copyright and IT contracts, are handled by practitioners the firm works with regularly, and by the firm itself when they arise in a patent dispute.

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