Alfred Karcher GmbH v Jinping Zhu

Alfred Karcher GmbH initiated an examination against the registration of a design held by Jinping Zhu, alleging that the registered design was not distinctive over the prior art. The dispute was heard by the Designs Office, and the hearing officer was Adrian Richards. The key issue before the Designs Office was whether the registered design was substantially similar to the prior art design, and therefore not distinctive.

The Designs Office considered the standard of the informed user, the freedom of the creator to innovate, and the state of development of the prior art base. The Designs Office found that the standard of the informed user was not one of a high level of familiarity but rather someone who was well-acquainted with handheld window vacuum cleaners or similar products. The Designs Office also found that the freedom of the creator to innovate was relatively unconstrained, as there was significant variation in visual features among handheld window vacuum cleaners. The state of development of the prior art base was also considered, with the Designs Office finding that the prior art base was poorly developed, with only one handheld window vacuum cleaner design existing before the Priority Date.

The Designs Office concluded that the registered design was substantially similar to the prior art design and not distinctive. The Design and the Earlier Design shared a degree of similarity in shape and configuration, and the differences between them did not rise to the level of advantageous or significantly impact the overall impression. The Designs Office revoked the registration of the design and awarded costs to the Requestor.

The Designs Office found that the Design was substantially similar to the Earlier Design and not distinctive. The state of development of the prior art base was a potent factor in arriving at this finding, as it is a relatively rare event that a product will create 'a new archetype of products'. In such circumstances, the second entrant must in most cases visually differentiate substantially from the first, or risk being found to be not distinctive. In this case, the Owner had not overcome this hurdle, and the Design was not registrable.