Friday 19 January 2018

Dunnes Stores appeals ruling that it copied Karen Millen fashion designs

Tim Healy

DUNNES Stores has launched a Supreme Court appeal in a legal row with UK fashion company Karen Millen over the protection of fashion designs.

A five-judge court today reserved judgment in the case where Dunnes has appealed a High Court ruling against the Irish retail giant that it had breach EU regulations by copying a woman's  shirt and top.

The landmark case centres on the interpretation of a regulation relating to the protection of fashion designs.

At the heart of the case is a black knit top and a striped shirt in blue and brown versions. The decision of the Supreme Court could have ramifications for all high-street retail chains.

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 their stores in 2006.

 The Dunnes Stores top was made in China and shipped through Korea to Ireland, while the Dunnes Stores shirt was manufactured in Turkey.

High Court judge, Ms Justice Finlay Geoghegan  ruled that Dunnes, in offering for sale the black knit top and blue and brown shirts, infringed Karen Millen's rights to unregistered Community design under Council Regulation (EC) No6/2002 in each of the three designs.

The  primary issue in the case was whether Karen Millen held the right to an unregistered community design in the Karen Millen designs. An unregistered design confers on its holder the right to prevent others selling the design only if the contested use results from copying the protected design.

Having examined the garments and having heard the evidence and submissions, Ms Justice Finlay Geoghegan found the right to the community design in the three Karen Millen designs was vested in Mosaic.

Ms Justice Geoghegan ordered Dunnes Stores to stop copying designs for women's clothing which Karen Millen claimed it originated and to deliver up any of the items of clothing still in its possession at the time.

Opening the appeal yesterday, Michael Cush SC for Dunnes said the only issue before the court was unregistered design rights.

He said the High Court had taken a very narrow approach. The test as to  whether unregistered rights had been breached should not have been confined to a comparison against just one item.

There was no reason why overall impressions should be confined to a single garment, he said. As a result, he contended, there was an error at the heart of the approach of the High Court on the matter.

Brian O'Moore SC  for Karen Millen, said the High Court judge was not to be criticised for taking the design which was closest for comparison and if that fell foul of the test then there was no point in looking at the others.

Mr Justice John Murray, presiding, said judgment will be delivered at a later date.

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