Sunday 23 November 2014

Dunnes faces uphill battle in fashion case after EU ruling

Published 03/04/2014 | 02:30

Karen Millen Faux Shrug cami top (left) and the Dunnes Stores black top

A case taken by UK firm Karen Millen against Dunnes Stores looks certain to have wide-ranging implications for the fashion industry, after one of the EU's top legal officials said that onerous burdens of proof should not be placed on holders of so-called 'unregistered community designs'.

An advocate-general at the European Court of Justice issued his opinion after the Supreme Court had raised a number of points last year related to design law that it wanted clarified before ruling on a landmark case involving Dunnes and Karen Millen.

The opinion also means that Dunnes faces the prospect of losing its Supreme Court case.

Last year, Dunnes Stores launched a Supreme Court appeal to a High Court ruling in relation to the protection of fashion designs.

The High Court had found that Dunnes Stores had breached EU rules by copying a woman's shirt and top sold by Karen Millen and then selling it in its own outlets.

Karen Millen's UK parent company, Mosaic Fashions, had claimed in the High Court that Dunnes produced almost identical women's clothing to items it produced, thereby infringing design rights as protected by a new EU regulation of 2002 on unregistered community designs.

Karen Millen launched the top and shirt in December 2005 and Dunnes put similar items on sale in the Savida range at its stores in 2006.

The High Court ruled that Dunnes, in offering for sale the black knit top and blue and brown shirts, had infringed Karen Millen's rights to unregistered community design under Council Regulation (EC) No 6/2002 in each of the three designs.

But Dunnes Stores appealed the High Court decision to the Supreme Court last year.

The advocate-general at the European Court of Justice said yesterday that Dunnes did not dispute that it copied the Karen Millen garments and acknowledges that the unregistered community designs of which Karen Millen claims to be the holder are new designs.

DESIGN

"However, it is clear ... that Dunnes disputes that KMF (Karen Millen Fashions) is the holder of an unregistered community design for each of the KMF garments on the grounds, first, that the garments do not have individual character within the meaning of Regulation No 6/2002 and, secondly, that that regulation requires KMF to prove, as a matter of fact, that the garments have individual character," said the advocate-general.

The advocate-general has disagreed with Dunnes Stores' view, however. The legal expert's opinion is not binding on the Court of Justice, but such opinions are almost always adopted by the EU court, meaning Dunnes Stores' faces an uphill battle in its Supreme Court appeal.

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