First ECJ Decision on design validity Case C-281/10 PepsiCo v Grupo Promer Mon Graphic - Upholds Former UK and OHIM Case Law
Hot off the press is the long-awaited ECJ judgment in Case C-281/10 PepsiCo v Grupo Promer Mon Graphic.
Since this is their first pronouncement on matters of substantive design law it is perhaps a relief that the ECJ has followed the lower instances all the way down the line - there are no surprises, good or bad.
- The informed user lies between the average consumer of trade mark matters and a sectoral or technical expert - "Thus, the concept of the informed user may be understood as referring, not to a user of average attention, but to a particularly observant one, either because of his personal experience or his extensive knowledge of the sector in question." (paras 53-54).
- Thus "without being a designer or a technical expert, the user knows the various designs which exist in the sector concerned, possesses a certain degree of knowledge with regard to the features which those designs normally include, and, as a result of his interest in the products concerned, shows a relatively high degree of attention when he uses them." (para 59).
- Taking into account "imperfect recollection" is not wrong in law (para 55).
- Use of samples is allowed (paras 73-74) as "the comparison of the actual goods was used only for illustrative purposes in order to confirm the conclusions already drawn" - in line with UK case law.