Brands and retailers are increasingly resorting to legal battles to protect their design rights against copycat clothing, with a case involving Karen Millen set to reach the highest level of European courts.
Legal firms specialising in fashion have told Drapers they have seen a significant increase in the number of cases involving unregistered design rights, which, if proved, can give items three years of protection without the costs associated with trademarking.
Gary Assim, partner at Shoosmiths, said: “In the last two to three years we have seen roughly a 50% increase in the number of intellectual property disputes in fashion that centre around unregistered design rights, and I think it’s largely a result of the downturn.”
Stephen Sidkin, partner at Fox Williams, told Drapers his law firm had about a dozen live cases of this type.
“Brands that are prepared to invest in their own designers, rather than sitting there and getting designers to pinch that which happens to be hot, are getting fed up with freeloaders riding on the backs of others who haven’t made the investment,” he said.
“There is an urban myth that if a designer makes a handful of changes it will satisfy the test, but because the changes are often superficial, it won’t.”
The trend has surfaced as one of the highest-profile cases of its kind moves towards the highest level court in Europe.
The seven-year legal battle between Karen Millen and Irish retailer Dunnes Stores over design right infringement is set to conclude at the Court of Justice of the European Union (CJEU) within the next two years.
The case, which dates back to 2006, centres around Karen Millen’s claims that Dunnes infringed the retailer’s design rights by copying a jumper and two shirts. Dunnes claims the designs were not sufficiently distinct to warrant protection.
The Irish business has appealed two previous rulings in Karen Millen’s favour and is now taking its final legal recourse.
Lee Curtis, partner at trademark and design law firm Harrison Goddard Foote, told Drapers: “The outcome of this reference to the CJEU could have major implications for the fashion industry, as many designs often take individual elements from a series of designs which have gone before.
“If the CJEU finds in favour of Karen Millen, this will mean design protection can be maintained for such combinations; if the CJEU finds in favour of Dunnes then design protection will be significantly weakened in the world of fashion and beyond across the whole of the European Union.”
Reports suggest that if the Dunnes’ appeal is not successful, Karen Millen will receive damages worth, at best, tens of thousands of pounds despite both sides racking up seven-figure legal bills.
Both Karen Millen and Dunnes declined to comment.