Pog appeal - the A-G's Opinion

As trailed here a day or two back, Advocate-General Mengozzi has given an Opinion on the Pepsico/Grupo Promer Mon "pogs" appeal (Case C-281/10 P PepsiCo v Grupo Promer Mon Graphic).  These Opinions are usually followed by the ECJ, and often provide more detail than the eventual judgment.

This one contains both procedural and substantive points. 

Procedure

1. As we guessed some time back, the Advocate-General has taken the view that many of the grounds of appeal are really points of fact (which are not appealable to the Court of Justice) - "undeniable that the arguments adduced by PepsiCo are designed solely to call into question the findings of fact made by the General Court." (para 35).
   
   
2. The A-G considers (rightly I think) that there isn't any basis for treating appeals on design cases any differently from those on trade mark cases (paras 71-75).  Thus, the General Court has a wide freedom to examine the appeal and substitute its own views for those of OHIM.
   
   
3. On the use of samples as a substitute for the registration in comparison (a topic of disagreement between Courts and commentators), the A-G takes a pragmatic view that it was allowable in the circumstances of this case (though his logic applies to pretty much any other case too - para 83). That is not inconsistent with what the UK Courts have done in the past.

Substance

1. On the nature of the "informed user", "generally speaking, the informed user is not a ‘technician’ with special knowledge, but just a user who is a little more attentive and interested than the average consumer: in other words, a user of whose perceptions the General Court is able to form an adequate picture." (para 74).   That will be music to the ears of those judges who don't want design cases to be overburdened with expert or survey evidence.  As to his/her attitude, "...the General Court envisaged an informed user who was anything but superficial and inattentive, even if lacking the analytical acumen which, if anything, is the hallmark of an observer of patents." (para 67).
   
   
2. On the use of "imperfect recollection" in design comparison, the A-G comments that the General Court did not in fact use that analysis (despite language which was "a little infelicitous"), but that in any event the law does not exclude either direct or indirect comparisons and there are occasions where an indirect comparison may be useful or necessary as a practical matter (paras  49-50, 55).

We will keep you posted when the Court of Justice gets round to a final ruling.