In the long-running case of Karen Millen Fashions Ltd v Dunnes Stores, a case that centres on unregistered Community design rights, Advocate General Wathelet has now given some guidance on the meaning of "individual character", a concept which has traditionally been difficult to define.
Karen Millen brought proceedings against Dunnes Stores in the Irish High Court in 2007 claiming that Dunnes Stores had infringed the unregistered Community design rights in a striped shirt and knitted jumper sold by Karen Millen by selling similar clothing in Ireland under its "Savida" label.
However, whilst Karen Millen were successful in their infringement claim before the High Court, Dunnes Stores appealed the decision to the Irish Supreme Court. Although Dunnes Stores accepted that they had copied the clothing in question, they appealed on the basis that Karen Millen did not have an unregistered Community design as the clothing lacked "individual character" within the meaning of Article 6 of the Community Design Regulation. Dunnes Stores argued that Karen Millen's items comprised a combination of already existing design styles that could be identified from various other pieces within the fashion industry, and as such were not individual. The Irish Supreme Court referred the case to the Court of Justice of the European Union (CJEU).
Advocate General Wathelet has now handed down his opinion, in which he stated that:
"Article 6 [...] is to be interpreted as meaning that, in order for a design to be considered to have individual character, the overall impression which that design produces on the informed user must be different from that produced on such a user by one or more earlier designs taken individually and viewed as a whole, not by an amalgam of various features of earlier designs."
However, whilst it remains too early to tell whether the Advocate General's advice will be followed by the CJEU, it is suspected that the guidance may in fact be very welcome.
In the meantime, those connected with the fashion industry will no doubt be reassured by the Advocate's statement which seemingly gives greater strength to unregistered design rights. This is especially true for smaller boutique labels which, due to the rapid pace of change in the industry, may often find it difficult to justify the cost of design registrations.
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