The dispute began with small promotional discs known as 'pog caps', accessories used in marketing campaigns. PepsiCo argued that a competing design produced the same overall visual impression.

The Court of Justice confirmed that the test for infringement of an industrial design is the overall impression on the informed user, not the ordinary average consumer, but a person familiar with the product category.

An essential element of the test is the degree of freedom of the designer. The fewer the technical or regulatory constraints, the more relevant minor differences become. If the designer had substantial freedom and still chose a similar form, the conclusion of imitation is easier to support.

This judgment is the benchmark in any EU design infringement action. If you suspect that a competitor copied your design, analysing the overall impression is the first legal step.