Case: Woodhouse UK Plc v Architectural Lighting Systems [2006] RPC 1
Outcome: followed
Since the informed user standard has been adopted by the Registered Designs Act 1949 (UK), the explanation of the standard by courts in the UK provides some guidance. In Redberry , I referred to the exposition of the informed user standard in Woodhouse UK Plc v Architectural Lighting Systems [2006] RPC 1 (" Architectural Lighting "). In this case, his Honour Judge Fysh QC (at [50]) defined the concept of an informed user as follows: First, this notional person must obviously be a user of articles of the sort which is subject of the registered design and I would think, a regular user at that. He could thus be a consumer or buyer or be otherwise familiar with the subject matter say, through use at work. The quality smacks of practical considerations. In my view the informed user is first, a person to whom the design is directed. Evidently he is not a manufacturer of the articles and both counsel roundly rejected the candidature of 'the man in the street'. 'Informed' to my mind adds a notion of familiarity with the relevant rather more than what one might expect of the average consumer; it imports the notion of 'what's about in the market?' and 'what has been about in the recent past?'. I do not think it requires an archival mind (or eye) or more than an average memory but it does I think demand some awareness of product trend and availability and some knowledge of basic technical considerations (if any). In connection with the latter, one must not forget that we are in the territory of designs and thus what matters most is the appearance of things; as Mr Davis reminded me, these are not petty patents. Therefore, focus on eye appeal seems more pertinent than familiarity with the underlying operational or manufacturing technology (if any). I feel uncomfortable with analogy to the 'man skilled in the art' whose 'nerd-like' (and other) attributes seem too technical: Technip France SA's Patent [2004] EWCA Civ 381 ; [2004] R.P.C. 46 at [6-12] (CA). (Emphasis original) The properly informed eye of the court must make its decision as a matter of degree as a matter of overall impression: see Architectural Lighting at [52]. 25 As noted in Redberry , in Proctor &amp; Gamble Co v Reckitt Benckiser (UK) Ltd [2006] EWHC 3154 ; [2007] FSR 13 (" Proctor &amp; Gamble Co v Reckitt Benckiser ") at [31] et seq, where Lewison J (Chancery Division Patents Court) considered and approved the Architectural Lighting observations, as did the Court of Appeal: see Proctor &amp; Gamble Company v Reckitt Benckiser (UK) Ltd [2007] EWCACIV 936 ; (2007) 73 IPR 605 (" Proctor &amp; Gamble ") at [24], [25], [32] per Jacob LJ, with whom May and Dyson LJJ agreed. Jacob LJ noted (at [28]) "the informed user is alert to design issues and is better informed than the average consumer in trade mark law". 26 As also noted in Redberry , in January 2007, the Design Registrar of the UK Intellectual Property Office had cited and applied the Architectural Lighting 'informed user' analysis in ruling on the validity of a clothing design registration: see Application by Pauline Ann Walton to invalidate UK Registered Design in the name of Zap Ltd (UK IPO, 0-027-07, 22 January 2007) (" Walton "). 30 As noted in Redberry , there may be a difference in the discussion to date as to what is needed to have the requisite product familiarity. On one view, this familiarity is greater than the information possessed by the average user; on another view, this familiarity is that which is possessed by the ordinary user: compare Architectural Lighting at [50] with Apple at [14]. I indicated in Redberry , for the reasons stated there, that I preferred the former approach. I doubt that, generally, the ordinary user will be appropriately regarded as an informed user.