On 2 April 2014, Advocate General Wathelet issued his opinion in the case C-345/13, Karen Millen Fashions v. Dunnes Stores. Following a preliminary ruling request from the Irish Supreme Court, the Advocate General was called to express its opinion as to the interpretation of the notion of individual character set under article 6 of Regulation no. 6/2002.
In the underlying case, Karen Millen brought proceedings against Dunnes stores (an Irish retail company) claiming that a black knit top, a blue shirt and a brown shirt offered for sale by the latter under the “Savida” label in 2006 infringed its unregistered community designs of garments offered for sale in Ireland in 2005.
In its opinion, the Advocate General clarified “that, in order for a design to be regarded as having individual character, the overall impression which that design produces on the informed user must be different from that produced on such user by one or more earlier designs taken individually, rather than by a combination of features drawn from several designs previously made available to the public.”
The Advocate General also confirmed that the holder of the rights to an unregistered design must only (i) proof when the design was disclosed to the public in the first place; and (ii) indicate what constitutes the individual character of the design. No proof is instead required as to the novelty and individual character of the same, in relation to previously existing designs.