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the informed user is clarified as Pepsi’s pogs fail to appeal

27 October 2011

The European Court of Justice (ECJ) has followed the Advocate General’s opinion by dismissing an appeal against the General Court’s ruling that Pepsi’s design registration for “pogs” was invalid.

The design was previously ruled invalid because it did not create a different overall impression on the informed user than an earlier Promer design. A key facet of Pepsi’s appeal was that the General Court had incorrectly defined the “informed user” and his level of attentiveness.

The ECJ disagreed with Pepsi and stated that informed user lies “somewhere between … the average consumer… who need not have any specific knowledge and who, as a rule, makes no direct comparison between the trade marks in conflict, and the sectoral expert, who is an expert with detailed technical expertise”.

Although this is a welcome clarification, this case concerned a very simple design, and it seems likely that the courts will continue to grapple with this concept in less straightforward design fields.

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