Proctor and Gamble and Co v Reckitt Benkiser UK Ltd, 2008 FSR, 8
Citation: Proctor and Gamble and Co v Reckitt Benkiser UK Ltd, 2008 FSR, 8
Rule of thumb: Are expert product designers key witnesses in design infringement cases? If their point about the similar technique used is clear & brief then it can be – if they take too long to make their point then it actually detracts from the case being made rather than helps it.
Background facts:
Parties argued:
Judgment:
The Court held that in bringing a design infringement case an expert can be used to explain why a new design is similar to a registered one the reasonable man’s basic eye test to consider whether they are indeed similar or not. This expert evidence can make the person deciding the case an ‘informed’ reasonable man, rather than just a reasonable man. The Court held that where an expert takes too long to make their point however it makes the case less and less likely to succeed because design cases are to be based on what is largely the first impression people have of a product. The facts of this case were that it was questioned whether new clothes products infringed designs – it was argued that cheap versions on the market infringed the designs of the expensive ones. It was held that although a person could be educated by a fashion expert to give them a ‘good sense of fashion’, but did emphasise that initial impressions from this knowledge base were still the most important aspect of the case, ‘‘If it conveys the same impression then it can hardly be a poor quality imitation and will succeed for the same reason as the original’ (para 60) ... ‘By and large it should be possible to decide a registered design case in a few hours. The evidence of the designer e.g. as to whether he/she was trying to make, or he/she thought had made, a breakthrough, is irrelevant. The evidence of experts, particularly about consumer products, is unlikely to be of much assistance: anyone can point out similarities and differences, though an educated eye can sometimes help out a bit (para 4)... An informed user... (is)... better informed than the average consumer... (in this particular clothing case)... with a keen sense of fashion, a good knowledge of women’s tops and shirts previously made available to the public, alert to design and with a basic understanding of any functional or technical limitations on designs for women’s tops and shirts... (para 73)’, Jacobs LJ.
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.