July 1st, 2014

When copying is not a compliment

KMvDS1Fashionista 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.

TKMvsDMhankfully, 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”.

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Clothing brands often use graphic logos on garments, such as on the left breast of shirt or jumper.  Some of these graphic logos are instantly recognisable as denoting a particular brand and registered as trade marks.  Well known examples include the Lacoste crocodile, the Original Penguin and the Ralph Lauren polo player. Use of a […]

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As you may have heard, the internet is about to undergo a major expansion. The changes apply to generic top-level domains (“gTLDs”) – the letters immediately following the final dot in an Internet address. Fashionista read recently in the FT about London successfully applying for its own domain: .london, which will no doubt appeal to many […]

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August 14th, 2013

Zero support for zero hours?

Fashionista couldn’t help but notice the recent furore in both the press and parliament relating to business’ use of zero-hours contracts.  As reported in the Guardian, the most recent development being the legal action brought by an individual against Sports Direct, which has highlighted the company’s alleged ‘excessive’ use of such contracts.  With the use […]

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The pop star Rihanna has successfully made out her claim that Topshop’s sale of unauthorised t-shirts bearing her image amounted to “passing off”. In reaching his decision, Mr Justice Birss held that the elements for a passing-off claim had been satisfied.  These elements, known as the “classic trinity”, are: (i) goodwill, (ii) misrepresentation leading to confusion […]

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It seems only just yesterday that Britain was celebrating the wedding of the Duke and Duchess of Cambridge, and with it, a huge boost to the retail sector. Now, just days from the arrival of their first child, the couple is again at the centre of the nation’s attention – and firmly in the minds of […]

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April 12th, 2013

Don’t mess with Wang!

Look what has caught Fashionista’s eye whilst travelling to Belgium – an article in the flemish newspaper De Standaard reporting on Vera Wang’s initiative to act against copying .   So upset is this ever so chic designer at the repeated efforts to copy her beautiful wedding resses that in her Shanghai bridal boutique clients  […]

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Fashionista has a serious shopping habit.  Will her disposable income be reduced  by this week’s budget?  So like all dedicated shoppers she will be tuning in to this week’s budget and not just to see the latest in red bags. To make life simple, on Wednesday 20 March she will be logging on to see […]

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As the advertisements in this Fashionista’s web browser certainly seem to know about her taste in shoes, Fashionista was interested to learn that on 4 February, a new set of online behavioural advertising (OBA) rules came into effect, aiming to secure transparency and control for web users. The new rules will be enforced by the […]

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January 30th, 2013

Harris Tweed defends its name

Fashionista is unlikely to be the only one to notice the rising popularity of all things home-made including Harris Tweed, the only fabric produced in commercial quantities by traditional hand weaving methods. Made from virgin wool it is dyed and then spun in the homes of the islanders of the Outer Hebrides. Last year saw […]

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