Appeal court clears air on community design rights

The first ruling on the scope of the Registered Community Design Right  (CDR) has been handed down by the Court of Appeal.

Bird & Bird, which acted for Reckitt Benckiser in its high-profile dispute with Procter & Gamble says the case has major significance for designers and brands worldwide.

Bird & Bird partner, Lorna Brazell, says the case is groundbreaking as this is the first authoritative guidance on the CDR and has also set an important precedent in Europe, clarifying for the first time what constitutes the protection available to an original design.

In February 2006, Procter & Gamble sued Reckitt Benckiser over the design of the container of its air freshener Air Wick Odour Stop, claiming it infringed the Registered Community Design which it had obtained for its Febreze product.

The High Court ruled in favour of Procter & Gamble, finding that the two designs were too similar, but the appeal court this week overruled this decision asserting that  there was sufficient difference of detail between them. 

Brazell says the decision is important for all brand owners and all those involved in consumer product industries where the use of designs is paramount.

“We now have clear guidance on what protection an original design can attract and significantly a systematic approach to get there.”