|The joy of Google Image: on a search for|
'informed user' + 'headrail', this image was
on the first page of research results
In this action Louver-Lite (LL) alleged infringement by Harris Parts (HP) of its Community registered design for a headrail which formed part of a window blind system (the registered design, the allegedly infringing product and some other relatively unmemorable artwork -- unless you belong to the esoteric world of window-blind headrail aficionados -- are all annexed to the judgment here). LL's design, and indeed other earlier designs for window-blind headrails, all generally had a C-shaped cross-section with a flat top, side channels on each side underneath the flat top, side walls running downwards, and flanges extending inwardly at the bottom. This inspired HP, in trouble for selling a look-alike Valencia headrail, to argue that LL's design was invalid for lack of novelty and lack of individual character.
The learned judge started off by considering the attributes of the informed user, the hypothetical construct who got over 30 mentions in his judgment -- more than the words "claimant", "defendant" or "infringe". This blogger cannot rid himself of the notion that the constant references to this informed user, mandated by Community and national law and sanctified by judicial approbation, are often little short of farcical. By the time a court is looking more closely at the attributes of the informed user than the claimant's design and the defendant's product, it does seem that a case can be made for saying that there must be a better and easier way of going about things. The judge said, at paras  and :
"... I accept that the appearance [of the headrails] in situ is very important and that the informed user will look at and consider the appearance of these products in situ. These products are used by being fixed to a ceiling and their appearance in that context is undoubtedly important. However I do not accept that this means that the informed user never interacts with these products by looking at them directly when not fixed to a ceiling [presumably it is the headrail that is fixed to a ceiling, not the informed user] and I do not accept that the informed user will be unable to make a side by side comparison.Anyway, while the informed user of window blinds would not consider that LL's design was a radical departure from earlier headrail designs, that design was at least novel and the informed user would regard it as creating a more rounded, almost oval overall impression. The next closest prior design looked very different to LL's because it was a wide design with a boxy appearance.
... It is impossible to analyse the issues in this case without looking in detail at the profiles in cross-section. However in doing so I must not lose sight of the fact that overall impression to an informed user is the real issue. The informed user is never going to take a hacksaw to these rails and cut them so as to scrutinise the cross-section, nor are they going to dismantle a whole item to scrutinise the cross-section either. ... "
In short, LL's design did have an individual character and was validly registered. True, it only had a relatively narrow scope of protection, but HP's design had infringed it: it looked almost identical to LL's design. Even an informed and particularly observant user who, for reasons best known to himself, showed a relatively high degree of attention, would find the LL's design and HP's product virtually indistinguishable.