Karen Millen, the British fashion brand, discovered that the Irish chain Dunnes Stores was marketing clothing items almost identical to its own creations. Without prior registration of its designs, Karen Millen relied on unregistered Community design protection.

Dunnes Stores challenged the claim, arguing that Karen Millen’s designs lacked individual character. The question before the CJEU was: who must prove individual character, the proprietor or the challenger?

The Court decided that the proprietor must identify the elements that confer individual character on its design, but is not required to prove exhaustively its novelty against the entire body of earlier designs.

The unregistered Community design gives automatic protection for three years from the date of first public disclosure. It is the ideal tool for the fashion industry, where collection cycles are short and prior registration is not always practical.