16.4. Standard of the familiar person / informed user: Familiarity with the product

An important part of identifying the familiar person / informed user is determining where they are on the spectrum of familiarity.

Familiarity in Australia

To infringe an Australian design, a competing design/product must be used in Australia (s 71(d)). This limits the term ‘familiar person’ or ‘informed user’ to someone who is familiar with the relevant designs/products in Australia. However:

• evidence of what familiar persons or informed users in Australia are familiar with from other countries may be relevant.
• evidence from someone in another country may be relevant if it relates to what is familiar in Australia.​​​​​​​

Level of familiarity

The familiar person / informed user is not assumed to have any knowledge of the particular product. Rather they are familiar with products that are the same as or similar to that product. This rules out, for example, an impulse buyer who has not used such a product before.

On the other hand, the familiar person / informed user is not necessarily an aficionado (enthusiast) of the product. An expert or specialist is not necessarily the familiar person / informed user either, particularly if their main experience of the product is not as a user – e.g. if they are a design expert. The level of familiarity may be influenced by product characteristics such as cost and complexity. Note that there could be several classes of people who are suitably familiar with the product in question and similar products.

However, the familiar person / informed user is typically better informed than the average user. See LED Technologies Pty Ltd v Elecspess Pty Ltd [2008] FCA 1941 (at 59), where the informed user is ‘reasonably informed; not an expert but more informed than an average consumer’. The decision in Review 2 Pty Ltd v Redberry Enterprise Pty Ltd [2008] FCA 1588 makes a similar assessment:

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.

Another useful analysis (but in the context of the equivalent European legislation) of the characteristics of the informed user is in Woodhouse UK v Architectural Lighting Systems [2006] RPC 1:

First, this notional person must obviously be a user of articles of the sort which is the 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 the 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 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 … Therefore, the focus on eye appeal seems more pertinent than familiarity with the underlying operational or manufacturing technology (if any).

This description was cited with approval in Proctor & Gamble v Reckitt Benckiser (UK) [2008] FSR 8. Note, however, the need for caution in referring to European and UK decisions.