Unregistered Community designs: assessments to define their validity
The regulation on Community design provides that a design (whether registered or not) must be protected at EU level as long as it is a new design and has individual character.
In 2007, Karen Millen Fashions (KMF), a company which produces and sells woman clothes, started a proceeding against Dunnes Store (an Irish retail chain) stating that said company had copied some garments from their collection. The Supreme Court of Ireland questioned the European Court about the dispute.
The European Court of Justice, with a ruling on 19 June 2014, observes firstly that the individual character of a design must be assessed by a 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.
Secondly, in case of infringement action, there is a presumption of validity of unregistered Community designs; accordingly, the holder needs only to indicate what constitutes the individual character of that design.