16.2. Standard of the familiar person / informed user: Identifying the familiar person / informed user

The hypothetical person who is the ‘familiar person’ /  ‘informed user’ is reasonably familiar with the nature, appearance and use of comparable products in Australia as at the priority date of the design. This includes being aware of the functional or aesthetic visual features of such products. They are not necessarily familiar with the particular product being examined.

When the product is identified with a particular purpose or use (for example, a container for water) the relevant familiar person / informed user would be familiar with that product and the identified purpose or use.

Identifying the real user

The concepts of familiar person / informed user are intended to be flexible enough to incorporate, where relevant, the views of consumers, experts, specialists and skilled tradespeople.

The owner of a product is not necessarily the user of components of the product. For example, a car owner is the ultimate user of their car but the motor mechanic who replaces worn-out parts of the car is the effective user of the car parts.

A particular issue when identifying who is in fact a user of a product is the status of people who have some contact with the product in its path from the manufacturer to the ultimate end user. A wholesale buyer in a department store may have some knowledge of the products they stock for sale, but that does not make them a user of those products. However, their role in choosing products that users will want to buy might put them in a position to give evidence about the standard that would be applied by users. (See Declarations about the familiar person / informed user.)

If the familiar person / informed user is a child

The issue of whether the familiar person / informed user can be a child is particularly relevant to toys and children’s clothing. In general:

• If the product is intended to be bought by children (e.g. with pocket money), the person familiar or informed user is a child.
• If the product is usually bought by an adult but the decision to purchase is strongly influenced by the expectations of the child they buy it for, the familiar person / informed user is a child.
• If the product is usually bought by an adult without much influence from the child’s views of the product (e.g. the child is an infant or the product is to meet developmental needs), a child is not necessarily the familiar person / informed user.

Example

In Ferrari S.P.A v Dansk Supermarket A/S R0084/2007-2, 25 January 2008 the informed user for a design for a toy car was a child.

If the user is an animal

Section 19(4) defines the informed user standard in relation to a person. Therefore, the familiar person / informed user cannot be an animal.​​​​​​​

Example

In Mars UK Limited v Paragon Products BV, R1391/2006-3, 25 January 2008, the informed user for a dog chew product was held to be a dog owner.