Case: Woodhouse UK Plc v Architectural Lighting Systems [2006] RPC 1
Outcome: followed
The Registered Designs Act 1949 (UK) adopted the concept of the informed user, with the consequence that UK courts can provide some guidance in this country. The first useful judicial exposition of the informed user standard in England appears to be that of his Honour Judge Fysh QC, sitting as the UK Patents County Court, in Woodhouse UK Plc v Architectural Lighting Systems [2006] RPC 1 (" Architectural Lighting "). In Architectural Lighting , his Honour (at [50]) defined the 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]. 23 Relevantly to this case, in January 2007, the Design Registrar of the UK Intellectual Property Office 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 "). 27 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]. The former approach is to be preferred. I doubt that, generally, the ordinary user will be appropriately regarded as an informed user. In the present context, women as a class are the ordinary users of ladies' garments, but not all women have the requisite degree of familiarity to be described as informed users. Thus, whilst there will be some women who subscribe to fashion magazines (such as Vogue or Collezioni that illustrated the prior art in this case) and have particular knowledge of, and familiarity with, fashion trends, there will be many other women who lack such knowledge and familiarity. Precedent and the text of s 19(4) indicate that it is from the perspective of someone closer to the former group that the newness and distinctiveness of the Review Design and the similarity of the Redberry garments in terms of overall impression must be judged: compare Architectural Lighting at [50].