A five-judge Supreme Court reserved judgment in the case where Dunnes Stores has appealed a High Court ruling in favour of Karen Millen, which had alleged the Irish retail giant had breach European regulations by copying a woman’s shirt and top.
The landmark case centres on the interpretation of an EU regulation relating to the protection of fashion designs.
At the heart of the case is a black-knit top and a striped shirt in blue and brown versions. The decision of the Supreme Court could have ramifications for all high street retail chains.
The Karen Millen’s British parent company, Mosaic Fashions, had claimed in the High Court that Dunnes produced almost identical women’s clothing to items produced by Karen Millen, thereby infringing design rights as protected by a new European regulation of 2002 on Unregistered Community Designs.
Karen Millen launched the top and shirt in Dec 2005 and Dunnes put similar items on sale in the Savida range at their stores in 2006.
High Court judge, Ms Justice Finlay Geoghegan ruled that Dunnes infringed Karen Millen’s rights.
The primary issue in the case was whether Karen Millen held the right to an unregistered community design in the Karen Millen designs.
An unregistered design confers on its holder the right to prevent others selling the design only if the contested use results from copying the protected design.
Ms Justice Finlay Geoghegan found the right to the community design in the three Karen Millen designs was vested in Mosaic.
She ordered Dunnes Stores to stop copying designs for women’s clothing which Karen Millen claimed it originated and to deliver up any of the items of clothing still in its possession at the time.
A stay was placed on Dunnes Stores’ account of profits to Karen Millen pending the outcome of the Supreme Court appeal.
Opening the appeal yesterday, Michael Cush, counsel for Dunnes, said the only issue before the court was unregistered design rights.
He said the High Court had taken a very narrow approach.
The test as to whether unregistered rights had been breached should not have been confined to a comparison against just one item.
There was no reason why overall impressions should be confined to a single garment, he said. As a result he contended there was an error at the heart of the approach of the High Court on the matter.
Brian O’Moore, counsel for Karen Millen, said the High Court judge was not to be criticised for taking the design which was closest for comparison and if that fell foul of the test then there was no point in looking at the others.
Mr Justice John Murray, presiding, said judgment will be delivered at a later date.