Design Law - Individual character, informed user, the overall impression test Flashcards
What is the primary measure of whether a design has individual character?
Overall impression on an informed user
Which of the following best describes the “informed user” under design law?
Which of the following best describes the “informed user” under design law?
The greater a designer’s freedom in creating a design, the:
Higher the threshold for asserting distinctiveness
Which case highlighted that “features dictated by function” should not influence the overall impression test?
Kwang Yang v OHIM
What is reduced when a design has fewer constraints based on cost, materials, or statutory standards?
The significance of minor differences
Explain the importance of the “overall impression” test in assessing individual character.
Explain the importance of the “overall impression” test in assessing individual character.
Define the role of “design freedom” in determining whether a design has individual character. Provide an example where restricted freedom impacts distinctiveness.
Design freedom refers to the creative latitude a designer has. When freedom is restricted by functional or regulatory constraints, even minor differences can establish distinctiveness. For example, in safety-regulated products, small aesthetic changes might suffice for uniqueness.
What are some attributes of an “informed user” that differentiate them from an average consumer or technical expert?
An informed user is particularly observant, familiar with design features in the sector, and conducts direct comparisons, unlike an average consumer who may not notice details or a technical expert who focuses on technical aspects.
Why are features dictated by function often excluded from assessments of overall impression?
Functional features are excluded because they do not contribute to the aesthetic or visual distinctiveness of a design, focusing instead on technical necessity.
Describe how visibility of a feature influences overall impression using a relevant case example.
Visible features are more impactful in the overall impression. In Magmatic Ltd v PMS, the court considered how visible elements of a design affected its distinctiveness compared to prior art.
How do courts determine which similarities and differences between designs carry the most importance in the overall impression test?
Courts consider the informed user’s perspective, focusing on visible, unique, and non-functional features, while discounting banal or purely functional elements.
