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Procter & Gamble Company (“P&G”) held a Registered Community Design for a ‘sprayer’ design for its Febreze air freshener canister. The ‘sprayer’ was ergonomically designed to release a spray when pressure was applied by the user.

Reckitt Benckiser (UK) Ltd (“Reckitt”) produced a spray canister for its Air Wick room conditioner. P&G claimed that the Air Wick spray canister infringed their Registered Community Design. Reckitt counter-claimed that the registered design was invalid due to insufficient differences between the registered design and pre-existing products and designs.

The High Court found that P&G’s registered design was valid and had been infringed. The issue before the Court of Appeal was whether the trial judge had erred when comparing the ‘overall impression’ of both designs.

The Court of Appeal held that the judge had erred in principle in concluding that the overall impression of Reckitt’s design must “clearly differ” from P&G’s registered design in order to escape infringement. The Court stated that all that was required was a “different overall impression”. There was no requirement that the difference be “clear”.

In addition, the Court found the judge to have erred in his use of the ‘imperfect-recollection’ test instead of considering what struck the mind of an informed user at the time the design was viewed. The informed user was taken to be someone fairly familiar with design issues. The Court concluded that a poor quality imitation would not convey the same impression as the ‘original’ and would therefore fail on its own design merits.

It was held that the overall impression Reckitt’s Air Wick product would give to the informed user was different from that of the registered design. Accordingly, the appeal was allowed on infringement, but dismissed on validity.