## Facts

- A fashion company claimed protection for unregistered Community designs covering certain garments first made available to the public in the European Union.
- An Irish retailer marketed garments alleged to copy those designs.
- In the national proceedings, copying and novelty were not disputed; the dispute centered on whether the designs had “individual character” and on how validity of an unregistered Community design is treated in infringement litigation.
- The Irish High Court found infringement and accepted that the garments had individual character.
- On appeal, the Supreme Court of Ireland referred questions to the Court of Justice of the European Union on the interpretation of Regulation (EC) No. 6/2002.

## Issues

1. For “individual character,” must the overall impression of the contested design be compared to one or more earlier designs taken individually, or may it be assessed against a “mosaic” made by combining features from multiple earlier designs?
2. In infringement proceedings involving an unregistered Community design, must the right holder prove individual character for the design to be treated as valid, or is it sufficient to prove disclosure and identify what allegedly gives the design individual character?

## Decision

- The court held that individual character is assessed by comparing the overall impression of the contested design with the overall impression produced by one or more earlier designs, each taken individually, not by a composite “mosaic” assembled from isolated features of multiple designs.
- The court held that, for an unregistered Community design to be treated as valid in infringement proceedings, the right holder need not prove individual character; the right holder must prove qualifying disclosure and indicate which elements are said to confer individual character.
- The defendant may still contest validity by plea or counterclaim, including by relying on earlier designs to argue that no different overall impression exists.

## Legal Principles

- Individual character under Regulation (EC) No. 6/2002 turns on whether the design’s overall impression on the informed user differs from the overall impression created by a prior design made available to the public; the comparator is a prior design viewed as a whole, not an aggregation of features from multiple sources.
- The overall-impression assessment is made in light of the designer’s degree of freedom; more constrained freedom can make smaller differences legally significant, while broader freedom may require more pronounced differences.
- In infringement actions involving unregistered Community designs, validity is treated as established when the right holder proves the required public disclosure and identifies the features alleged to constitute individual character; the burden then shifts to the defendant to challenge validity.

## Conclusion

The court rejected evaluating individual character against a composite of isolated features drawn from multiple earlier designs and clarified that unregistered Community designs are treated as valid in infringement proceedings upon proof of disclosure and identification of the claimed individuality, leaving the defendant to carry the case for invalidity.


Karen Millen Fashions Ltd. v. Dunnes Stores (Limerick) Ltd., Case C-345/13 (C.J.E.U. 2014)