Brussels, 20/06/2014 (Agence Europe) - In order for a design or a model, whether or not it is registered, to be legally protected at EU level, it must have an individual character, which must be assessed by reference to specific, individualised and defined earlier designs, the Court of Justice of the EU states in a ruling (C-345/13) returned on Thursday 19 June in a dispute between a British fashion house (Karen Millen Fashion) and the Irish chain store, Dunnes Stores.
Dunnes Stores copied two unregistered items of clothing created by the company KMF, which brought proceedings calling for the sales of these items to cease and for damages. According to the representatives of the chain store, KMF cannot argue that these two items of clothing are protected. The reason they gave for this is the fact that both items lack the essential criterion of the individual nature of a new model. To support this position, they argued that these items have been created simply by the assembly of specific elements or parts taken from previous models.
The European judges did not agree with this reasoning. They stated that the assessment of the individual nature criterion of a design or model cannot be made in reference to a combination of specific and isolated elements, drawn from previous designs or models. It must be made in comparison with one or more specific, individualised, defined and identified earlier designs from among all the designs which have been made available to the public previously. The judges added that Community law contains a presumption of validity, in other words that the right holder of an unregistered Community design is not required to prove that it has individual character, even if this validity can naturally be subsequently contested. (JK)