Karen Millen Fashions made and sold clothing for women, including a striped shirt and a black knit top. In 2005 Dunnes, a major retail chain in Ireland, made copies of Karen Miller’s garments and, in 2006, started selling them under its "Savida" label. In 2007 Karen Millen brought proceedings against Dunnes in the Irish High Court, claiming infringement of an unregistered Community design under the Community Design Regulation 6/2002 (CDR).
“the assessment as to whether a design has individual character must be conducted in relation to one or more specific, individualised, defined and identified designs from among all the designs which have been made available to the public previously”.
“a design which meets the requirements under Section 1 shall be protected by an unregistered Community design for a period of three years as from the date on which the design was first made available to the public within the Community”.The fact that such provision makes reference to Section 1 CDR, the Court said, does not mean that a right holder shall provide evidence that all the conditions laid down in Section 1 [and, among other things, individual character requirement] are met. Indeed, such an interpretation would be utterly incompatible with the presumption of validity and it would render meaningless and nugatory the possibility for the defendant to challenge design's validity under Article 85(2), second sentence.
|Burden of proof for Dunnes|