But how different is different enough? The legislation goes on to state that a design has individual character if it “generates a different overall impression on the informed user”. Arguably, this definition asks more questions than it answers – questions that have occupied the minds of judges and attorneys in different infringement and validity instances through recent years. It can be that the evaluation for individual personality can not be truly objective, however there’s presently a sensible body of case law establishing the way an appraisal ought to be made, and therefore a predictable and consistent strategy ought to be possible.
Who’s the educated user?
The educated consumer is fairly observant and circumspect, is a frequent consumer of the kind of content that are in question, also has broad understanding of what’s available on the industry. The individual we’re searching for isn’t an “average user” – he’s far better educated than that. On the flip side, the educated user is absolutely a user. He’s not a designer himself, and doesn’t have particular technical knowledge. Possibly a very helpful characterisation of the kind of person we’re attempting to envision is they’re a “fussy customer”.
Even though it might occasionally be tricky to discover a true person who matches the description of this somewhat hypothetical “informed user”, a account ought to be taken of the technical realities of this marketplace. By way of instance, the educated consumer of a kid’s toy should surely be a youngster, and the evaluation of general belief must in that case include a realistic perspective of how careful the savvy user actually is.
Constraints on the designer
As stated by the European Legislation, “in assessing individual character, the degree of freedom of the designer in developing the design shall be taken into consideration”. If the designer has little liberty, then tiny differences can contribute to individual personality.
The amount of freedom of the designer stems from the technical factors which must be implemented when designing products to be used. The designer of a product that has some practical purpose is going to have much less design freedom in relation to the designer of a product that’s purely decorative. Be aware that this isn’t the same as the exception of components that are ordered “exclusively by technical purpose” (see below) – that the developer is constrained not only by what really won’t do the job, but also by what’s obviously terrible layout. By way of instance, a handle ought to be ergonomic and comfortable. The apparatus will still work is that the deal was uncomfortable and awkward, but the developer is constrained by the necessity to generate a fantastic design.
There are a variety of exceptions that apply to the kinds of merchandise that could be safeguarded by documented designs. These attributes must hence be deducted from an appraisal of individual personality. Parts that are “entirely dictated by specialized purpose”, components which “must match” another item (e.g. connectors), and component parts of complex products that aren’t visible in ordinary use are excluded from security and are therefore irrelevant to human personality.
Similarities and differences
In the event the question of general impression has been seriously contemplated, then there are two layouts that have some similarities and some differences. Lawyers arguing for a distinct overall impression tend to be fond of thinking up a very long list of gaps. After studying their arguments (without the advantage of images) you may be surprised to discover that two goods that are seemingly so different actually produce the exact same general impression! However, what should be taken into consideration is it’s the total impression of this layout which has been analyzed. If the similarities are far more visually striking than the differences, then the simple fact that the record of differences is that the very long one is immaterial. What should be contrasted is the entire layout.
Too much emphasis shouldn’t be put on verbal evaluation of their similarities and differences between two layouts. Jacob LJ has repeatedly emphasised that the most significant thing about the layout, the alleged breach, as well as the prior art is what they seem.