Industrial Property Law

The protection conferred by the registration of a design extends to any design which does not produce a different overall visual impression on the informed observer (Art. L. 513-5 IP Code) . The criterion of the overall visual impression on the informed observer, or informed user under the terms of Directive No 98/71, is the same as that used to assess the specific character of the design under Article L. 511-4 of the Intellectual Property Code, and is interpreted in the same way.

The informed observer is a person who uses the product in which the design is incorporated, is familiar with the various designs existing in the sector concerned, has a certain degree of knowledge as to the elements that these designs normally comprise, and, because of his interest in the products concerned, demonstrates a relatively high degree of attention when using them . He differs from an averagely attentive consumer  in that he is particularly vigilant because of his personal experience or extensive knowledge of the sector in question , and is expected to use the objects in question . Thus, for a computer toy design, the informed user is a child, assisted by an adult at least for purchase and activation . When the same product has several uses, distinct personalities can be identified as observer or informed user. The informed observer of a swimsuit pouch model is not only the swimsuit wearer, but also the salespersons who purchase these products to offer for sale to their clientele .

The perception of the informed observer may vary, depending on the degree of freedom of the creator in drawing up the design . The greater the degree of creative freedom in the field of design, the more important it is for the informed observer to pay attention to the details .

The court must ascertain whether the offending design produces an overall visual impression on the informed observer that differs from the claimed design . Infringement is ruled out if the models compared have a number of similarities, but these relate essentially to secondary features . The differences between the designs must be obvious to the informed observer .

Cass. com. 23 June 2021, LawLex202100004062JBJ; CA Paris, 23 October 2018, LawLex201800001611JBJ; Cass. com. 24 May 2017, LawLex202100003829JBJ; Cass. com., 19 January 2016, LawLex202100003826JBJ; CA Paris, 18 June 2014, LawLex202200001240JBJ; CA Paris, 18 October 2014, LawLex201400001236JBJ; CA Paris, 31 May 2013, LawLex202100002885JBJ; CA Paris, 21 December 2012, LawLex202200001238JBJ, relating to a spoof magazine, the similarities of which are blurred by the differences resulting from the plagiarism of the registered design; CA Paris, 15 December 2006, LawLex202200001367JBJ; CA Paris, 5 January 2000, LawLex200200000860JBJ.

CA Paris, 30 March 2022, LawLex202300007820JBJ.

CA Lyon, 16 March 2023, LawLex202300009679JBJ; CA Paris, 11 June 2019, LawLex202100004062JBJ, which rules out infringement in the case of differences that are merely matters of detail; CA Aix-en-Provence, 2e ch., 22 October 2015, LawLex202200008413JBJ.

CA Paris, 24 February 2012, LawLex202100004709JBJ; CA Paris, 3 June 2011, LawLex201100001020JBJ.

Cass. com., 15 June 2010, LawLex201000000756JBJ.

CA Paris, 4 May 2018, LawLex202300007818JBJ.

CA Paris, 26 January 2016, LawLex202100002895JBJ.

CA Paris, 27 June 2017, LawLex201700001173JBJ.

CA Paris, 27 January 2013, LawLex201400001204JBJ.

Cass. com., 11 May 2022, LawLex202300008378JBJ, which states that the infringement of a design is assessed by comparing the design as a whole with the previous design, each considered in all its aspects, taking into account the designer's degree of freedom during development.

CA Paris, 30 March 2022, LawLex202300007820JBJ; 27 June 2017, LawLex201700001173JBJ.

Cass. com., 23 June 2021, LawLex202100004062JBJ.

478. Overall visual impression/Informed observer