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Dunnes Stores admitted that it copied the designs but denied infringement of Karen Millen’s unregistered Community design right. Dunnes Stores asserted that the garments did not have a sufficiently ‘individual character’ to be afforded protection under Council Regulation (EC) 6/2002 (the Regulation), and that in any event the evidential burden as to whether the garments possessed an individual character was on Karen Millen.
Apart from the concept of the "informed user", modern European design protection law has to grapple with other vague and protean notions. One such notion -- that of a design's "individual character" -- is edging a little closer to clarification now that Advocate General Melchior Wathelet has the Court of Justice of the European Union (CJEU) his Opinion this morning in Case C‑345/13 Karen Millen Fashions Ltd v Dunnes Stores, Dunnes Stores (Limerick) Ltd, a reference for a preliminary ruling all the way from the Supreme Court, Ireland.
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