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ECJ reviews Karen Millen designs case


Karen Millen is a well-known company that sells women’s clothing in the UK and Ireland. In 2005 it designed and placed on sale a striped shirt and a black knit top. Examples of these garments were purchased by representatives of Dunnes Stores from one of Karen Millen’s Irish outlets and subsequently copied and put them on sale in late 2006.

In proceedings before the High Court and on appeal in Ireland, Dunnes did not deny that it had copied the Karen Millen garments. However, Dunnes did dispute whether the garments had the required ‘individual character’ to establish infringement under the Community Designs Regulation 6/2002. The Irish Supreme Court referred questions to the Court of Justice concerning the overall impression test and the burden of proof in unregistered design proceedings.

In Advocate General Wathelet’s opinion he has clarified the test for infringement of community designs. He has proposed that the individual character test is satisfied when the design differs from one or more earlier designs taken individually and viewed as a whole rather than by comparison with an amalgam of various features of earlier designs. It remains to be seen whether the Court of Justice will follow the Advocate General’s recommendations but the opinion has already been cited as a significant victory for clothing designers as it narrows the potential scope of prior art which can be relied upon to invalidate a claimed design.

The opinion is here.

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Nicholas Saunders acted for the United Kingdom Government.