The Informed User in Design Law: What Should he Compare and How Should he Make the Comparison?

摘要

As a result of the PepsiCo judgment of the CJEU, a lack of clarity has arisen regarding the answer to the question what an informed user should compare in invalidity proceedings: should he compare the existing design corpus with the design registration or with the actual marketed article embodying the design? This article puts forward the view that the design registration is still decisive. In the PepsiCo judgment the CJEU has also given an answer to the question how an informed user should compare the design registration with the existing design corpus or the allegedly infringing product. The CJEU's answer is that the Community Design Regulation is silent on this point. When possible the informed user will make a direct comparison between the design registration and the existing design corpus or the allegedly infringing product. Under certain circumstances, however, it is also conceivable that such a direct comparison will not be possible and an indirect comparison (based on recollection) may then be made. The author believes that the CJEU has made a wrong decision by allowing indirect comparisons and that courts should always make a direct comparison.