Unlike the products, the judgment stinks

If ever we needed evidence that the Law is an ass, look no further than a landmark appeal court judgment last week on the design rights of two mega-brands, Procter & Gamble and Reckitt Benckiser. It was bad for brands, bad for designers and, ultimately, bad for consumers too.

Before teasing out the implications of the judgment, let’s take a deep breath and outline the arcane intellectual property rights case behind it. 

When P&G discovered that RB had pirated the registered, award-winning design technology – developed at great expense – of its Febreze airspray range and applied it, at a fraction of P&G’s own investment, to the Air Wick Odour Stop canister, it was understandably mortified. In the court case that followed, P&G successfully invoked Registered Community Design (RCD) legislation, which had been introduced across Europe in 2002 as a more watertight adjunct to the national trademark laws that had had to suffice until then. RB was duly banned from taking Air Wick Odour Stop to market.

Until last week, that is, when appeal court judge Lord Justice Jacob decided Odour Stop’s design did not infringe the law because it created a “different overall impression to the informed user.” Now there’s a phrase to conjure with, on several levels. It means, apparently, that RB can get away with stealing someone else’s design innovation so long as it produces, in this case, a cheaper version of the same product. “Cheapness” is a defence because, in the consumer’s mind, there can be no confusion with the “Rolls-Royce” product made by P&G. And there’s worse to come, for His Lordship has summoned to his aid a new and mysterious expert witness, “the informed user”, to bedevil future hearings. Well, not “expert” actually; nor, on the other hand, an average shopper without any pretensions to product knowledge. So who or what exactly? It promises to be a minefield.

For the moment, though, the industry must pick up the pieces. RCD, which had earlier promised to be useful in safeguarding against the copycats, has now had a coach and horses driven through it. Packaged goods companies had long since despaired of the trademark laws doing anything useful to protect their packaging and positioning from, most usually, a supermarket imitation appearing on the shelves in double quick time. But in taking refuge in carefully protected and expensive design innovation, the fmcg brigade might reasonably have thought they stood on much firmer ground. Not so, apparently.

Consequently, this landmark judgment is being seen in the industry as a “charter for copycats”. It’s not even in the long-term interest of consumers. After all, if manufacturers feel their design innovations are going to be ripped off at the first opportunity, why bother spending all that money in the first place?

Balance, not to mention clarity, needs to be restored. Whether this will come about as result of a pending hearing in Eire over the rights and wrongs of Dunnes, the downmarket retailer, copycatting a Karen Millen “black thingy” (technical description here by counsel) licensed to Mosaic, remains to be seen.

Stuart Smith, Editor

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