UK: Who Let The Pogs Out? PepsiCo Takes Its Pogs To The European Court Of Justice

Last Updated: 7 June 2011
Article by Tom Scourfield, Stuart Helmer and Tom Reid

Advocate General Mengozzi delivered his opinion on 12 May 2011 in the long-deliberated Case C-281/10 P Pepsico, Inc.  The opinion considers designers' degree of freedom in designing goods and provides clarity on the meaning of the "overall impression" made by a design, as set out in Regulation No 6/2002.  The Advocate General goes on to define the notional informed user of designs, declaring that it is neither a general consumer nor an expert with specific technical expertise, but someone who sits between the two.  The Advocate General also considers the informed user's method of comparing goods, noting that direct comparisons are suitable in some cases.  If the European Court of Justice (ECJ) chooses to follow the Advocate General's opinion, owners of designs will have a better understanding of the strength of their design rights thanks to these definitions.

To view the article in full, please see below:

Full Article


Advocate General Mengozzi delivered his opinion on 12 May 2011 in the long-deliberated Case C-281/10 P Pepsico, Inc.  The opinion considers designers' degree of freedom in designing goods and provides clarity on the meaning of the "overall impression" made by a design, as set out in Regulation No 6/2002.  The Advocate General goes on to define the notional informed user of designs, declaring that it is neither a general consumer nor an expert with specific technical expertise, but someone who sits between the two.  The Advocate General also considers the informed user's method of comparing goods, noting that direct comparisons are suitable in some cases.  If the European Court of Justice (ECJ) chooses to follow the Advocate General's opinion, owners of designs will have a better understanding of the strength of their design rights thanks to these definitions.


Grupo Promer Mon-Graphic SA ('Promer') filed an application for the following Community design with OHIM for "metal plates for games" under No. 53186-01 on 17 July 2003:

Promer claimed priority on the basis of Spanish design No 157098 filed on 8 July 2003.

On 9 September 2003, PepsiCo filed an application for a similar Community design in respect of "promotional items for games," as follows:

Priority was also claimed for a Spanish design, No 157156 filed on 23 July 2003.

Both designs relate to pogs, the playing pieces to a children's game.  Pogs are frequently included in packaging as promotional toys or free gifts for children.


Regulation No 6/2002 states at Article 6 that a design must have individual character.  A design is considered to have individual character if "the overall impression it produces on the informed user differs from the overall impression produced on such a user by any design which has been made available to the public."  In particular, the designer's degree of freedom in developing the design will be considered.

Court Proceedings

The case first appeared before the Office for Harmonisation in the Internal Market ('OHIM') in 2004, where OHIM took the view that PepsiCo had a great degree of freedom in choosing which type of promotional toy to include in its packaging, and that PepsiCo's pogs unnecessarily produced the same overall impression as those of Promer.

PepsiCo appealed to the Board of Appeal of the Cancellation Division, where it was found that the designer's degree of freedom was limited to just within the category of pogs, but small differences were enough to effect a different overall impression.

In turn, Promer brought the decision of the Board of Appeal before the General Court, which agreed freedom of design was limited to the category of pogs, but ruled that the designs were too similar to produce a different overall impression on the informed user. It thereby annulled PepsiCo's victory in front of the Board of Appeal.

European Court of Justice ("ECJ")

PepsiCo, unpersuaded by the General Court's reasoning, then appealed to the Court of Justice of the European Union.  On 12 May 2011, Advocate General Mengozzi delivered his opinion which strongly calls for the appeal to be dismissed.

The Advocate General visits a number of issues in his reasoning. He notes that a significant number of the grounds of appeal are actually points of fact, and that findings of fact are not suitable for appeal to the ECJ.  He states rather strongly at paragraph 35 of his opinion that it is not for the Court of Justice to reconsider factual assessments made by the General Court, and therefore sees these issues as inadmissible. 

Perhaps of most interest is that the opinion goes into considerable depth of discussion regarding the definition of the "informed user" of the design.  According to the Advocate General, the informed user is "not a general consumer who might, entirely by chance and with no specific knowledge, also come into contact with the goods characterised by a particular design.  Nor yet is the informed user an expert with detailed technical expertise."  He further explains that 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." 

The Advocate General has also confirmed that when the notional informed user is considering the competing goods, he may make a direct comparison of the pogs.  The comparison does not need to be based on a "vague recollection" of the pogs, but can be imagined to be a comparison of the pogs held in each hand and considered together.  However, the Advocate General notes that "imperfect recollection" in designs must be considered on a case-by-base basis, as in some situations, the informed user may equally compare the pogs with some time in-between each viewing. 

Finally, the Advocate General also comments on the importance of the "overall impression," writing that in some cases, where there is a limited degree of freedom, small differences will potentially be enough to represent individual character.  He gives the example of a kitchen table with four legs, which is the standard design of a kitchen table: another competing kitchen table will not be considered identical merely because it also has four legs.  He states, "Where designs are characterised by significant constraints on the designers' creative freedom, small differences may, generally, be sufficient to produce a different overall impression."  In the context of the pogs, however, the General Court found that pogs may have "triangular, hexagonal or oval rather than circular" central imprints, "and it is not for the Court of Justice to reconsider that assessment."


The Advocate General's opinion is not binding, so it remains to be seen how the ECJ decides this appeal.  If it follows the opinion, however, the definition of the informed user and the concept of the "overall impression" may provide design holders with a much better idea of the strength of their design rights.

The Advocate General's opinion on Case C-281/10P PepsiCo, Inc can be found here.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 03/06/2011.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.