The March 2014 issue of the European Intellectual Property Review [EIPR] carries an article by Dr P. G. F. A. Geerts (Assistant Professor, University of Groningen), "The Informed User in Design Law: What Should he Compare and How Should he Make the Comparison?"  It's an English version of a piece published previously in Dutch IP journal Intellectuele Eigendom en Reclamerecht, 2013/3 and it argues that the Court of Justice of the European Union was wrong to allow indirect comparisons between designs and that courts should always make a direct comparison.

The question whether or not side-by-side comparisons should be made is one that refuses to go away, and it also continues to arise in trade mark law. It's difficult for the judiciary to treat the two bodies of law as being autonomous when their subject matter overlaps.