European court rules against Dunnes Stores

The European Court of Justice has ruled against Dunnes Stores in relation to arguments it has made in the case where British fashion company Karen Millen is complaining about the copying of its designs.

A number of questions were referred to the court by the Irish Supreme Court concerning the interpretation of EU regulations on the protection of fashion designs. The outcome is seen in some quarters as having ramifications for all high-street retail chains.

In the High Court, Ms Justice Mary Finlay Geoghegan ruled that Dunnes, in offering for sale a black knit top and blue and brown shirts, infringed Karen Millen's rights to unregistered community design under council regulation (EC) number 6/2002 in each of the three designs.

The issue was then appealed to the Supreme Court, where Dunnes argued that as Karen Millen had failed to prove the individual character of the designs at issue, it was not the holder of an unregistered community design. It said the individual character of a design must be assessed by reference not only to one or more individual designs made available to the public previously, but also by a combination of features taken in isolation and drawn from a number of earlier designs.

In its judgment, the court in Luxembourg said that the individual character of a design must be assessed by reference to one or more specific, individualised, defined and identified designs from among all the designs which have been made available to the public previously.

“Consequently, that assessment cannot be conducted by reference to a combination of features taken in isolation and drawn from a number of earlier designs.”

The Supreme Court had already rejected some of the Dunnes Stores claims and a full hearing of the appeal by the Irish retailer can now go ahead after the rulings from the Luxembourg Court.

In the European court’s judgment, it says that the British fashion designer put the shirt and top on sale in Ireland in 2005, and that the items were purchased by representatives of Dunnes Stores. “Dunnes subsequently had copies of the garments manufactured outside Ireland and put them on sale in its Irish stores in late 2006.”