EU Unregistered Design Right - Another Case, Another Victory
Designers and retailers are increasingly enforcing their EU unregistered design rights against infringers. The recent high-profile Irish case brought by Mosaic Fashions (Karen Millen's parent company), against Dunnes stores in the Dublin Commercial Court, continues this trend and was the first Irish EU unregistered design right case brought to trial. Mosaic was successful in claiming that their unregistered community design right in two shirts and one sweater sold under the Karen Millen label in 2005 were infringed by Dunnes. Mosaic was awarded an account of Dunnes profits made in respect of the garments. However, Dunnes has lodged an Appeal against the Court's decision which at the time of writing has yet to be heard.
Before relying on the EU unregistered design right, designers and retailers will need to ascertain who owns the right and also that it fulfils certain criteria including originality. In this regard, maintaining a record of the "design story" of each garment, as well as ensuring that employment agreements and especially freelance agreements deal adequately with the ownership of designs, is crucial. In the current climate, we anticipate that more and more EU unregistered design right owners will use this weapon successfully in the continued fight against infringers.
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