Nothing from CFI or ECJ yet

UK: Procter & Gamble v. Reckitt Benckiser

OHIM: R 0860/2007-3 & Alicante News 6/08


“Informed” in what? P&G decision notes that difficulties may arise where 2 designs are in different fields

Indication of Product identifies Informed User

R 1421/2006-3 Cash Registers (should be “carefully worded”)

R 0084/2007-3 Toy cars (not replica cars, so Informed User is a child not an adult!)

But a narrower genus within a broad Indication of Product may be preferred:

R 1001-3/2005-3 Tazos/Rappers (may be adult or child) – invalidation reversed

R 1337, 1380/2006-3 Internal Combustion Engines (for lawn mowers)

Is Indication really relevant? Note Green Lanes. No “indication” available for UCD, and optional for national designs.


Consumer designs (eg furniture, fashion) – Informed User is purchaser for own use

R 0250/2007-3 Tavoli/Tables, followed in many later cases, eg R 0860/2007-3 Invertor Generators

Products provided by A for use by end users B - Informed User is end user not trade buyer

R 0976/2007-3, R 241/2007-3 Slot machines

R 1437/2006-3 Communications Equipment (a loudspeaking conference phone)

Toys - Informed User is child user not parent purchaser

R 0084/2007-3 Toy cars

BUT dog toys/chews - Informed User is dog owner purchaser not “informed canine”!

R 1391/2006-3 Dog Chews

Trade goods – purchaser is OEM/trade buyer

R 1001-3/2005-3 Tazos/Rappers (undecided whether marketing person or child end user)

R 0115/2007-3, R 0103/2007-3 Cosmetics bottle

BUT R 1337, 1380/2006-3 Internal Combustion Engines (Informed User was end user of lawn mower, not manufacturer)

Mental State

Interest and attentiveness

Knowledge base

Some aspects implied by identity

– i.e. child/consumer/trade buyer

Ultimately reflective of the arguments of representatives and the attitudes of tribunals

Interest and attentiveness

More interested in primary uses?

R 1214-5/2006-3 Meat Foodstuffs (taste, meat content, cooking time)

R 1337, 1380/2006-3 Internal Combustion Engines, R 0860/2007-3 Invertor Generators “Technical products” - here: IC engines and invertor generators (technical characteristics, safety, ease of use, power source …)

Informed User therefore inattentive to details

Compare P&G for level of interest in design?

Knowledge Base

Effect of knowledge:

“Crowded field” so small differences are noticed ;

R 1310/2005-3 Galletas/Oreo Cookies

R 1001-3/2005-3 Tazos/Rappers

R 0883-4/2007-3 Boots

R 0976/2007-3 Radiators

And vice versa? (cf Procter & Gamble v. Reckitt Benckiser for “pioneering” designs)

Higher OHIM standard:

R 0883-4/2007-3 Boots: awareness of product trends and what is on the market; pays attention to essential features (compare with Woodhouse)

Lower OHIM standard?

R 0250/2007-3 Tavoli/Tables, and citing cases – normal consumer with pre-purchase preparation such as store visits, catalogues, internet searches and product reviews