L'Oréal Société Anonyme RN Ventures Ltd (Rev 1)  EWHC 173, the recent decision by Mr Justice Carr, has been given the Amerikat treatment here and here. As a non-patenty Guest Kat, my eye was particularly drawn to the registered design claim which (spoiler alert!) succeeded.
One of my favourite features of design cases is identifying the informed user. In this case, the judge considered it was the "observant user of powered skin brushes".
The 747 was sufficiently different from the prior art and design corpus to be novel but was it sufficiently different to have individual character?
Carr J confirmed that following the CJEU's decision in Easy Sanitary (Cases C-361/15P and C-405/15 Easy Sanitary (21 September 2017), ECLI:EU:C:2017:720)"it is not necessary for it to be established that the informed user would know of an item of prior art for it to be considered as part of the design corpus" .
The design corpus included a wide variety of powered skin brushes (and one manual but undated example which was excluded from consideration).
As Carr J noted "[a]t a high level of generality, [the design corpus] are cylindrical or wedge-shaped devices, with a single brush head, with elongated handles with straight or slightly waisted sides, with some form of attachment area for the brush head" .
By contrast, "[t]he 747 Design is of a sculpted shape which narrows in the middle into an hourglass with a very distinctive bulbous head with curved sides and castellations around the brush. The issue is one of overall impression, and in my judgment, the 747 Design looks very different to the design corpus and represents a significant departure from the design corpus."
The expert evidence confirmed that there was a "wide degree of design freedom". The impact of design freedom has been considered by both the General Court in Kwang Yang Motor v OHIM (T-10/08)  E.C.R. II-265, ECLI:EU:T:2011:446 at  to  and the Court of Appeal in Procter & Gamble Co v Reckitt Benckiser (UK) Ltd  EWCA Civ 936,  FSR 8
Carr J summarised the principles from these cases as "The greater the designer’s freedom, the wider the scope of the monopoly; conversely, the more limitations on design freedom, the narrower the scope of the monopoly." Consequently, L'Oréal had a wide monopoly.
The overall impression discussion involved the usual poetic analysis of each feature (e.g. "The base of the brush has castellated features topped by a concentric circular arrangement of bristle tufts") ultimately the question was one of overall impression. Following the findings that the 747 Design is significantly different from the design corpus, and there is significant design freedom, he reached the conclusion that each of the Magnitone Products (i.e. the Defendant's products) creates the same overall impression as the 747 Design .
As David Stone pointed out at a recent IBIL event on designs, there is not a single example of a design which has been held to be valid and infringed by the Court of Appeal. Given that RN Ventures was held to have also infringed L'Oreal's patent, the design is less crucial than it might otherwise have been but it would be interesting to see how the design fares in the Court of Appeal.