It has been established that there is no definition of the informed user within the CDR. Commented as ‘lying somewhere between…the average consumer and…the sectoral expert’, the informed user developed rapidly from an attempted breakthrough in design law to a complex and inconsistent patchwork of judicial interpretation. There is little doubt that the area of law is in need of reform, however, this essay takes the stance that there is merit in having a standard. Moreover, there is merit in having a standard which takes into account the function of IPRs, the existing design corpus and the overall approach to interpretation of sources of Community law. Focusing on the latter, it is argued that abandoning the informed user fiction would give more credence to the unfavourable state of law which currently exists. Therefore, in order for some order to be brought to the design law framework, the informed user must be reformulated through acknowledging its strengths and overcoming the weaknesses. The strengths of maintaining a legal standard in Community law arise from the fact that the interpretation of such law is a teleological exercise.
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If, as the question proposes, the informed user fiction was to be abandoned, the intention of a provision could not be sought as there would be no provision at all. A current weakness in the case-law that exists is how literally the term “informed user” is interpreted; in Shenzhen, the General Court (“GC”) ‘adopted a literal interpretation’ of the word ‘user’, taking this to mean the ‘end-user’ of the product. This goes against what would could be said to be the objectives of the CDR as it disregards, as Cornwell states, the ‘many designs’ where the end user would not be the purchaser. Consequently, a reformed “informed user” provision would indicate an intention to focus on what the legislation is attempting to achieve. This would advise the court to adopt Cornwell’s suggestion that ‘informed’ is the material aspect, and that – if a word were to be interpreted literally – it should not be ‘user’.
A natural consequence of this proposition is that it is in line with the overall function of IPRs: to reward the creator. Given that it has been established that functionality is not rewarded with the design right, the clarification that the purchaser is the informed user also creates a direct monetary link between the informed user and the creator, thus promoting innovation and validation of the design as the stronger amongst competition. The second consideration is that of overall impression. In Proctor and Gamble, it was held that the overall impression was what the consumer took away after a careful analysis of the design. The idea of detailed analysis was further supported by the Advocate General’s reference in PepsiCo, suggesting that reformulation should codify a more detailed set of parameters for the idea of overall impression.
Furthermore, the overall impression should, as Geerts argues, arise relative to the existing design corpus. The immediate benefit which arises from this is that the ‘direct comparison method’ can be used in both invalidity and infringement proceedings, thus creating a more robust and tighter framework. Though there is still the issue of how different the overall impression should be when discussing invalidity and infringement, it is argued that, by considering a detailed analysis when the informed user first gains their overall impression, the ‘merely different’ versus ‘clearly different’ dichotomy proposed by Brazell would be where judicial interpretation remains relevant.
Finally, with regard to individual character, it is argued that regard should be given to functionality of some products. When considering the Samsung case, it was noted that design is concerned with ‘form and function but does not seek to reward function. ’ Given how, in some cases, functionality will soon be the only way to assess individual character, the fact that design does not seek to reward function suggests that the provisions were not sufficiently worked through before being enacted. Though there is the risk of ‘misusing design law to the detriment of patent law’, it is argued that, in order for the designer to be rewarded for their effort, regard must be granted to function. This new formulation can be the first step toward what Riis argues is a ‘single IP right’. Through consolidating existing IPRs by identifying an apparent convergence of functionality and design, ‘IP rights could be structured as a three-layer protective regime to accommodate the different needs for protection. ’ The first of these layers would offer complete protection against exploitation, which Riis comments as being ‘literal copying’, mirroring the existing design protection. The next two layers resemble existing copyright and patent protections. Therefore, if the reform proposed in this essay were to serve as a step toward this, the functionality aspect from patent law would be able to act vertically should the design protection fail initially.