It seems to be common ground that whether two designs produce the same or a different overall impression is a question of facts basically to be decided by the trial judge.  Nonetheless, European courts do not appear to accept survey or expert evidence but rather rely on the judge’s own aesthetic perception when comparing two designs (both validity and infringement).

Lack of empirical research is now seriously challenged by a team of authors from the fields of economic policy and innovation research who have published a thorough paper on “Protecting aesthetic innovations? An exploration of the use of registered community designs”.  This article, which can be downloaded free of charge only until June 4, 2015 here, starts with a promising abstract:

A decade after their introduction, approximately three-quarters of a million European registered community designs (RCDs) have been filed, and recent court cases suggest firms regard them as important for competition.  This paper reviews design protection in the European Union, discusses this legal instrument to protect designs and design innovations, and provides an overview of how RCDs are used by firms from different countries and industries.  To develop a more detailed understanding of their usage, we also report an exploratory qualitative study on the use of RCDs by German firms in three industries: footwear, car manufacturing and tool-making.  This revealed some important differences, notably between judicious filing and “all-you-can-file” strategies, which implies that future research using this instrument requires attention be paid to firm and industry level behaviors.  We develop a set of propositions, and set out a research agenda.

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