Good news for fashion designers — Community unregistered design right

Unregistered Community design right comes into existence automatically by the mere fact of making products incorporating the design in question available to the public in the European Union; there is no requirement for registration. 

Unlike with registered Community design, there is no exclusive right conferred upon the holder, as it must first be shown that the design has been copied before an infringement can be proven. The term of protection runs for a period of three years from the date on which the design was first made available to the public in the EU. This compares unfavourably with the protection afforded by Community registered designs, which confer upon the holder an exclusive right to use the design and prevent third parties from doing so for 25 years, with no requirement to prove that the design has actually been copied. However, in industries where the design will have a short shelf life, where the costs of registration outweigh the commercial benefits of doing so, unregistered Community design right may be very important. Probably the most obvious instance of such an industry is the fashion industry.

The nature of the protection afforded by Community unregistered design right should shortly become much clearer when the Court of Justice of the European Union (CJEU) delivers its ruling in a long-running dispute between Karen Millen and Irish retailer Dunnes Stores. Karen Millen instituted infringement proceedings in Ireland in respect of a black knit jumper and a blue shirt and a brown shirt offered for sale by Dunnes Stores…

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