Fashionista was delighted to read the judgment of European Court of Justice (ECJ) in the latest fashion copycat case concerning Karen Millen and Irish retailer Dunnes Stores, as it reinforces the rights of those whgo originate and create designs.
As some of you may recall, back in 2005, Karen Millen designed and offered for sale a striped shirt and a black top (see images). Dunnes Stores purchased examples of these items, produced copycat versions and sold them at a cheaper price. Karen Millen brought proceedings against Dunnes in the Irish High Court. Dunnes admitted copying but argued that the Karen Millen designs were not sufficiently new and different to merit protection. In particular, Dunnes argued that the Karen Millen designs did not have the necessary “individual character” (which is required for protection of unregistered designs under European law) as it was made up of a combination of features which were in existence in earlier designs. Dunnes also argued that Karen Millen carried the burden of proving that its designs had individual character. While the Irish High Court ruled in favour of Karen Millen, Dunnes appealed to the Irish Supreme Court who referred a number of questions to the ECJ who were asked to consider the test for assessing individual character.
Thankfully, the ECJ’s judgment confirmed that a design will have individual character if it differs from the overall impression of any specific designs taken individually, not from a combination of features in various designs. This means that it is not possible for a defendant such as Dunnes to combine different features taken from a number of existing designs to try and argue that the design being asserted against them lacks protection.
Further, the ECJ confirmed that designers are only required to indicate what constitutes the individual character of their design, they are not required to prove that individual character. The only proof required from designers is evidence of when the design was first made available to the public.
It is quite rare for cases of this type to proceed to judgment so the decision provides useful guidance on the scope of protection afforded to fashion designs. Lovers of fashion like Fashionista will be delighted to know that the law will protect new fashion designs from plagiarists where the design has the necessary “individual character”.