Decisions as to whether a product infringes registered design rights frequently come down to matters of general impression. That was certainly so in a Court of Appeal case concerning heart rate monitoring devices used by fitness enthusiasts.
The proprietor of two registered community designs (RCDs) in respect of such devices launched infringement proceedings against the importer and seller of models of smart watch which featured heart rate monitoring functions. Whilst finding that the RCDs were valid, a judge ruled that neither had been infringed by the design of the smart watches.
In challenging the latter ruling, the proprietor argued that, in stating that the smart watches did not produce an identical impression to the RCDs, the judge had applied the wrong legal test for infringement. He was also said to have made factual errors and to have performed a flawed comparison exercise based on enlarged 3D models of the smart watches.
In dismissing the appeal, however, the Court found that the judge had asked himself the correct question: whether the smart watches produced on the informed user a different overall impression than the RCDs. In resolving that issue, the informed user was not to be taken as an expert engineer who would appreciate the fine technical points of the RCDs.
In comparing the smart watches to the RCDs, the judge was entitled to make use of the accurate 3D models and he had not attached too much weight to the differences between them. Those differences were more than sufficient to support the judge’s finding that they created a different overall impression.
