Astra/Zeneca AB

[2007] ADO 4

DESIGNS ACT 2003

DECISION OF A DEPUTY REGISTRAR OF DESIGNS

Re:      Design 303092 in the name of AstraZeneca AB

Background

I heard the owner today regarding the issue of whether the design was distinctive having regard to the prior art - Swedish Design 77534.

At the outset of the hearing, I indicated that I had some familiarity with products of this nature, with a daughter and granddaughter both using such devices in association with asthma treatment. In that context I indicated that I had a view that a user would consider a device that indicated the number of puffs remaining would be of great significance to users, and accordingly such a user would give attention to the region of the device containing the indication.

However, I expressed concern that this interest was associated with the function provided by the indicator, and not the appearance of the indicator per se. In particular, I hypothesized that if the marks indicative of the scale were purely printing on the surface (with no underlying functionality), the user would have a quite different view of the product. Accordingly I was concerned to ensure that the Design was assessed on the basis of its visual features - and the fact that the utility of the design only arose as a result of the functional elements that were not part of the design (nor shown in the Design). Relating to this, I was concerned about the extent to which the standard of the informed user should be impacted by the elements of functionality.

Following discussion of the statutory and factual issues relating to these concerns, (including issues of the Trade Practices Act if a functional indicator did not exist) I am of the view that:

1. The relevant approach is to assess the standard of the informed user as of the priority date;

2. If the informed user's assessment is affected by an expectation of functionality, the fact that such functionality may not actually exist is not relevant. In this case, the question is: would the informed user's attention be drawn to the indicator on the end?  If the user would look there in the expectation that there is a useful indicator present, that is sufficient. In particular, it does not matter whether or not the indicator would function. If the user's attention is particularly drawn to that feature, that fact alone is sufficient to indicate the feature as being one of importance (in the Designs context).

3. In this case the owner has provided several declarations from relevant users that indicate their attention would be drawn to this feature. My own assessment similarly is that users' attention would be drawn to the feature - because of its potential functionality. Accordingly, in the context of s.19(2)(b), and applying the standard of an informed user, this feature would have greater relative importance with respect to the remaining parts of the design than would otherwise be the case..

4. On this basis, I am satisfied that the overall impression of this product is clearly distinctive from the cited prior art (which is exactly the same apart from the indicator).

5. Late in the prosecution, the owner filed a request to amend - to add a Statement of Newness and Distinctiveness. Apart from certain statutory difficulties concerning the allowability of that amendment, the owner indicated they did not wish to proceed with that amendment.

Conclusion

I am satisfied that the present design is new and distinctive compared to the cited prior art. Accordingly I direct that - upon the owner filing a formal withdrawal of the proposed amendments - examination of this design be taken as 'completed' pursuant to s.65(3), and that the provisions of s.67 now apply.

D Herald
Deputy Registrar of Designs
5 June 2007