16.5. Standard of the familiar person / informed user: References to European and UK decisions

We need to take care when referring to UK or European decisions concerning the informed user.

Task of the informed user

European and UK law has a lot in common with Australian law as to what constitutes an ‘informed user’. However, the task required of the informed user in the UK/Europe is quite different from that of the familiar person / informed user in Australia.

Under the European legislation, the equivalent of our test of newness and distinctiveness is the test of ‘individual character’:

A design shall be considered to have individual character if the overall impression it produces on the informed user differs from the overall impression produced on such a user by any design that has been made available to the public …

In other words, a design has ‘individual character’ if the overall impression is different from the prior art. That is, the test focuses on differences.

This contrasts with the Australian test of ‘substantially similar in overall impression’ (s 16(2)), which requires us to ‘give more weight to similarities between the designs than to differences between them’ (s 19(1)). That is, the Australian legislation requires greater differentiation than the European legislation does.

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Requirement to be a user of the product

The European and UK approach requires the informed user to be a user of the product. The Australian approach only requires the familiar person / informed user to have sufficient familiarity with the product. ​​​​​​​

Example

The decision in Multisteps Pty Ltd v Source & Sell Pty Ltd [2013] FCA 743, which concerned the unamended standard indicates that the informed user does not need to be a user of the product; they might be a range of different people who have gained familiarity with the product in different ways. It states (at 70) that:

… [the] necessary and only qualification is that the person be familiar with produce or similar containers … [and] he or she will have an awareness and appreciation on the visual features of the produce container that serve its functional as well as aesthetic purposes.

It also asserts (at 67) that:

… s 19(4) does not impose a standard higher than familiarity … This may be a reason for saying that the notional person is not a design expert, lest it be thought that a standard of design evaluation more rigorous or exacting than familiarity is involved. However, in my view, it is not a reason for excluding, necessarily, a design expert from being a person having the required familiarity.

The approach is the same for the familiar person standard.