Reckitt Benckiser (UK) Limited
[2008] ADO 4
•5 March 2008
DESIGNS ACT 2003
DECISION OF A DEPUTY REGISTRAR OF DESIGNS
Re:Designs 303921 and 303922 in the name of Reckitt Benckiser (UK) Limited, and examination.
Delegate: | Dave Herald |
Representation: | Applicant: P Whenman, Patent Attorney of F.B. Rice & Co |
Decision: | Designs 303921 and 303922 revoked |
Background
I heard the owner on 14 May 2007 regarding designs 303921 and 303922, and objections raised during examination. The examiner had objected that each design lacked distinctiveness over the owner’s previous designs 300071 and 300095 respectively. In both instances the cited design was published in August 2004, before the priority date of the present designs (which is 4 March 2005).
Two representations of each design (perspective, and side view) together with a similar set of two representations from the corresponding cited design are shown in the appendices.
The product of the designs (and the citations) is specified as ‘Air freshener device’. The basic structure of the product is a shallow container that has the shape of a cross-section through a piece of fruit, with raised portions that are suggestive of the internal structure of the relevant fruit. In use, it would seem that the product is placed on a flat surface, with air circulation over the uncovered side of the container providing for the dissemination of air freshener in the environment.
The difference between the present designs and the cited designs lies in the incorporation of an annular region in center of the base of the device – such that when it is placed on a surface it rests on the annular region, rather than upon the whole base of the device.
The issue arising in the examination of these designs is – does the presence of this annular region result in the overall appearance of the design being distinctive over the respective citation?
Statement of newness and distinctiveness
Both designs contain a statement of newness and distinctiveness in the following terms:
Each feature of the design considered separately or in combination with any other feature or features.
This statement is identical to the statement I considered in Reckitt Benckiser Inc [2008] ADO 1 (2 January 2008). As I concluded in that decision, I interpret this statement as being a reference to the combination of all visual features of the design as shown in the representations. In particular, the statement does not provide any basis to give particular attention to the annular region.
Informed user standard
S.19(4) of the Designs Act requires me to assess distinctiveness by applying the standard of an informed user. The applicant has not provided any evidence from informed users which might assist me in assessing that standard.
In my view, there are two broad categories of users of air freshener products. One category is those who are primarily interested in mechanical or functional issues – with issues of appearance being of secondary consideration. The other category of user is those who are primarily interested in attractiveness of appearance, with issues of mechanical construction being of secondary consideration. One might broadly identify commercial cleaners as being typical of the first category, and a person with domestic responsibility for the cleanliness of a home as being typical of the secondary category – but that relationship may be illusory, and in any event is not relevant to this decision.
The present designs are based on the appearance of fruit. That appearance is overtly based on visual attractiveness rather than functionality – it is clearly designed to generate a visual association with cleanliness and aromas of fresh fruit.
The present designs differ from the citations by the presence of an annular region in the base of the product. It would appear that this region has the functional purpose of providing a smaller area for the product to contact the support surface. The cross-sectional view shows that this annular region is not pronounced in depth; the depth of the annular region is much less than both the depth of the container and the height of the protrusions from the bottom of the container. By any assessment, it is not a prominent feature in the overall appearance of the product.
In my view, the informed user that is primarily interested in attractiveness of appearance of the product will have their attention focused on the artistic fruit-like appearance. And in this context the fruit-like appearance is so dominant in the overall appearance that the annular region, being unrelated to generating the fruit-like appearance of the product, will be subordinated from the view of an informed user – such that it does not impact on the overall impression.
On the other hand, the informed user that is primarily interested in mechanical or functional issues in preference to attractiveness will discount the product of these designs as being one that is primarily artistic. Again, in my view the dominant fruit-like appearance will subordinate the annular region from the view of an informed user.
There may be situations where a minor feature has increased prominence because an informed user has a particular interest in such a feature. Such an instance was discussed in Astra Zeneca AB [2007] ADO 4 – where a small metering dial on an inhaler was assessed as being of particular interest to users, thereby increasing its prominence in the overall appearance of the product such that it did impact on the overall impression.. In the present designs, I am not aware of any reason why an informed user’s attention would be drawn to the presence of the annular region – irrespective of whether that informed user is primarily interested in functionality or appearance. That is, in applying the informed user standard, I do not believe there is any reason to elevate the visual effect of the annular region above that which would otherwise be assessed.
Decision
I am of the view that the fruit-like appearance is so dominant in the overall appearance of the design that the annular region does not affect the overall impression of the design in comparison to the design of the respective citation. And this applies whether the informed user is a person more interested in an overtly attractive air freshener than the mechanical details of construction of the air freshener, or a person more interested in mechanical or functional issues than attractiveness.
I am unable to foresee any amendment to the designs that would be capable of overcoming this ground of revocation. Accordingly, unless the Registrar is served with a notice of appeal within 28 days of this decision (or if any such appeal is discontinued), I revoke designs 303921 and 303922.
D Herald
Deputy Registrar of Designs
5 March 2008
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