Fashion designers have reason to cheer today following a decision by the European Court, which makes it easier to rely on Community unregistered design rights.

Karen Millen v Dunnes centred on a shirt and top designed by Karen Millen.

The original shirt and the alleged infringing shirt are shown below.

Although Dunnes of Ireland admitted copying, it claimed that the Karen Millen designs lacked original character and were therefore invalid. To assist its case, Dunnes referred to lots of prior products, which when combined, allegedly featured the characteristics of the Karen Millen designs.

However, the Court found that Dunnes could not rely on a mosaic of features from a number of different products. When analysing the individual character of the Karen Millen designs, the features of only one prior product could be considered at one time and in isolation from the other products.

In addition, as the designer of the products, Karen Millen only needed to indicate the features which give the designs their individual character, without the need to provide supporting evidence.

Although the 7 year dispute between the two parties will return to the Irish courts for a final ruling, the decision is a very significant victory for Karen Millen and designers in general. Although unregistered rights are not as strong as a registered design, it re-affirms the value that unregistered design rights can have in tackling potential design copycats.

For the purposes of being able to protect their designs, it is essential that designers:

  1. keep all documents safe and date stamped showing the history and creation of their designs; and
  2. act quickly when trying to prevent any design infringement.

However, if any designs are of specific value to a brand, they should be registered. Unregistered European designs only last for three years from the date that a design was first made available to the public within the EU, whereas a registered European design can be valid for up to 25 years. Further, if a design in registered, when bringing an action against an infringement, there is no need to prove that copying took place to succeed.

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