It’s over. The seven year battle between Karen Millen and Irish chain store Dunnes Stores has finally reached the end. The Irish Supreme Court yesterday dismissed Dunnes Stores’ appeal in the case and handed the company a substantial legal bill. The decision came after the European Court of Justice ruling last month which rejected Dunnes Store’s arguments.
The case was the first involving clothing to be taken under the community unregistered design right regulation, which had come into effect across the EU in 2002.
In making her 2007 ruling, Ms Justice Mary Finlay Geoghegan found Karen Millen’s designs had an individual character. She said the court should have regard to the colour, texture and material used in the garments. She said they would create a different overall impression on someone who knew about fashion to designs that had been on sale in previous years. It was established early in proceedings that Dunnes had produced the clothes in question by copying the plaintiff’s designs. The defense argument that the Karen Millen shirts and sweater lacked “individual character” and failed “to produce on the informed user a different overall impression” from other similar garments. Therefore the Karen Millen designs which they had copied were not protected by Unregistered Design Rights. The court rejected the argument put forward by Dunnes Stores and held that Dunnes had infringed Karen Millen’s design rights.The judge reminded the parties that the question before the court was not whether “hypothetical husbands” would recognise the difference. Dunnes refused to accept the Irish court’s ruling and spend millions on further litigation, appealing the decision.
When the case reached the Supreme Court back in April of this year, it was held that;
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 by one or more earlier designs taken individually and viewed as a whole, not by an amalgam of various features of earlier designs and that;
2) In order for a Community design court to treat an unregistered Community design as valid, for the purposes of Article 85(2) of Regulation No 6/2002, the right holder need only prove when his design was first made available to the public and indicate the element or elements of his design which give it individual character.
However, the Court had referred the case to the ECJ to confirm whether it was obliged to treat a design as valid where the alleged right holder had merely indicated what constituted its “individual character” rather than established that character as a “matter of fact”.
When the case was returned to Ireland’s highest Court, Dunnes Stores’ appeal was dismissed.
Reports suggest that there has been a 50% increase in the number of unregistered design rights disputes in the fashion industry over the last few years. The right is one of the most effective methods of providing protection to fashion designers. There is no need to register a design and so costs are kept to a minimum – something imperative for designers starting out. We’re delighted to see the ECJ rule in favour of Karen Millen and see the unregistered design right enforced as a real and effective method of protecting fashion designs!