Informed user

The informed user is the reference figure against which the individual character of a design and the scope of its protection are assessed. Regulation (EC) No 6/2002 relies on it in Articles 6 and 10, and the French Intellectual Property Code, which refers to the “informed observer” in Articles L. 511-4 and L. 513-5, has the same person in mind. The informed user is to be distinguished both from the average consumer of trade mark law and from the person skilled in the art of patent law.

Profile of the informed user

The Court of Justice of the European Union adopts an intermediate notion between the average consumer, who has no specific knowledge and makes no direct comparison, and the expert with in-depth technical skills. The informed user is familiar with the existing designs in the sector concerned, knows which features those designs normally include and, owing to an interest in the products, shows a relatively high level of attention. Who that user actually is depends on the product: the end consumer of a piece of furniture, the professional buyer of an industrial component or, for a toy, both the child and the adult who buys it. Depending on the circumstances, the informed user compares the designs directly or indirectly on the basis of an imperfect recollection.

Overall impression and the designer’s freedom

Individual character (caractère propre) exists where the overall visual impression produced on the informed user differs from that produced by any design previously disclosed. That impression is assessed taking into account the degree of freedom of the designer. Where that freedom is restricted by technical or regulatory constraints, or by the saturation of the prior art, minor differences suffice to produce a different impression. Where it is wide, slight variations do not take the contested design outside the protection of the earlier right. The same test measures the scope of the right, which extends to any design that does not produce a different overall visual impression on the informed user: a right far removed from the existing designs enjoys broad protection, a right close to the prior art narrow protection.

Application in litigation

The court defines the sector of the products concerned, identifies the informed user, determines the designer’s degree of freedom and then compares the overall impressions, weighting the visible features according to their importance and disregarding those dictated by technical function. To that end, the parties produce prior designs, competitors’ catalogues and side-by-side views. In an infringement action, the comparison is between the design as registered and the contested product, not the product marketed by the right holder.

Key points

The informed user is an attentive observer who knows the existing shapes in the sector without being an expert. The informed user serves to assess the validity of the design and to define its scope, always in light of the freedom the designer enjoyed. From filing onwards, a file of prior designs and good-quality representations should be built up, and any validity or infringement analysis should anticipate how crowded the sector’s existing design corpus is.

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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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