Dunnes Loses Copyright Case in EU High Court

     (CN) – Ruling against Irish retail giant Dunnes Stores today, Europe’s highest court said clothing designs are presumed to be protected, even when not copyrighted, if the designer can generally show what makes them unique.
     Karen Millen Fashions sued the Irish retail chain Dunnes Stores in 2007 for selling two knockoffs of her designs. KMF said buyers for Dunnes bought examples of the garments – a striped blouse and a knit top – from a KMF store, reproduced them and placed in Dunnes locations in late 2006.
     KMF sought damages and an injunction against Dunnes, eventually landing in front of Ireland’s highest court. But Dunnes claimed that the designer couldn’t claim protection for unregistered designs under EU law since the tops were nothing but amalgams of earlier designs made available to the public previously, not unique and therefore not protectable.
     The Irish court asked the European Court of Justice whether an examination of a design to assess its uniqueness should reference earlier designs as a whole, or simply individual elements. Additionally, the court asked to what level KMF must prove the uniqueness of its designs.
     In answer Thursday, the Luxembourg-based court said that KMF’s designs must be examined for uniqueness “by reference to one or more specific, individualized, defined and identified designs from among all the designs which have been made available to the public previously.”
     “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,” the decision states.
     As to the Irish court’s second question, unregistered designs are presumed to be protected in infringement actions, so KMF is not required to prove the individual character of its designs, according to the ruling.
     “Given the lack of registration formalities for this category of design, it is necessary for the holder of the design at issue to specify what he wants to have protected under the regulation, it is sufficient for him to identify the features of his design which give it individual character,” the court concluded.

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