We are today returning to a questionable decision issued on October 10, 2007 between The Procter & Gamble Company and Reckitt Benckiser (UK) Limited by the Royal Courts of Justice (London) and dealing with Community Designs.

The decision can be found here.

The involved designs are the following ones:

The latter had been filed as a Community Design (RCD) under No. 000097969-0001.

At trial, the judge found that Airwick infringed P&G's Febreze design.

On appeal, Lord Justice Jacob allow the appeal of Reckitt Benckiser on infringement since "the similarities between the products are at too general a level for one fairly to say that they would produce on the informed user the same overall impression. On the contrary, that user would get a different overall impression".

You will note from the decision the astonishing set of mental exercises the judge submitted himself.

In this respect, it has to be born in mind that Council Regulation No 6/2002 of 12 December 2001 on Community designs states in Article 10 (Scope of protection): "The scope of the protection conferred by a Community design shall include any design which does not produce on the informed user a different overall impression".

Accordingly Lord Justice Jacob has stressed that the impression which would be given to the informed user by the Air-Wick product is different from that of the registered design. Even though the same features are found in both, there are clear differences between the two sprayers resulting from the different mode of their execution:

- the Febreze sprayer is smaller, has a slightly larger diameter and so looks more compact;

- the head of this sprayer is shallower but also broader, so that the Febreze sprayer fits the hand differently than the Airwick sprayer (with the Airwick sprayer, which has the considerably narrower head, there is a feeling that it could slip out of the user's hand);

- in contrast to the Airwick sprayer, the metal can of the Febreze sprayer tapers upwards, so that the waist begins lower down than in the Airwick sprayer;

- the "train" goes down much further in the Febreze sprayer, so that the lower boundary of the plastic part echoes the angle of the head part far more markedly than in the Airwick sprayer;

- the shape of head too is different: while the head of the Febreze sprayer – to draw a comparison from the animal kingdom – is reminiscent of a snake's head, the shape of the Airwick sprayer head is like a lizard's head.

The problem, in our view, stems from the fact that it is very difficult not to see Airwick as a copy of Febreze even for the the informed user. In other words, plaintiffs would certainly think twice before suing anyone for registered Community design infringement unless there is a total correspondence between the protected design and the alleged infringing product.