BREAKING NEWS- CJEU decision on Karen Millen V Dunnes Stores – Community Design Rights

Following up on our post in April 2014 this year, we can now confirm that the CJEU has ruled in the proceedings Of Karen Millen Fashions Ltd v Dunnes Stores, Dunnes Stores (Limerick) Ltd on how so-called “individual character” of a design is to be assessed.  The decision has just been posted on the Curia website.

Karen Millen jpg

The Supreme Court of Ireland had also asked the CJEU to determine whether, in proceedings where the validity of the Community right is put in question, the onus to prove that the protected design possesses individual character over the prior design rests on the right holder or on the party claiming that the design does not have individual character.

The decision is as follows:

1.      Article 6 of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs 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 not by a combination of features taken in isolation and drawn from a number of earlier designs, but by one or more earlier designs, taken individually.

2.      Article 85(2) of Regulation No 6/2002 must be interpreted as meaning that, in order for a Community design court to treat an unregistered Community design as valid, the right holder of that design is not required to prove that it has individual character within the meaning of Article 6 of that regulation, but need only indicate what constitutes the individual character of that design, that is to say, indicates what, in his view, are the element or elements of the design concerned which give it its individual character.

The case will now return to the Supreme Court of Ireland which will deal with Dunnes Stores’ assertion that Karen Millen Fashions is not the holder of unregistered Community designs for the contested garments on the grounds that the garments do not possess individual character.

Yvonne McKeown & Isabel Meenan

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