Today the Court of Justice of the European Union (CJEU) gave judgment in the long-awaited reference from the Irish Supreme Court in Case C‑345/13, Karen Millen Fashions Ltd v Dunnes Stores, Dunnes Stores (Limerick) Ltd.  In short, the court asked the CJEU the following questions:

‘1.      In consideration of the individual character of a design which is claimed to be entitled to be protected as an unregistered Community design for the purposes of [Regulation No 6/2002 [the Community Designs Regulation, here]], is the overall impression it produces on the informed user, within the meaning of Article 6 of that Regulation, to be considered by reference to whether it differs from the overall impression produced on such a user by:

(a)      any individual design which has previously been made available to the public, or

(b)      any combination of known design features from more than one such earlier design?

2.      Is a Community design court obliged to treat an unregistered Community design as valid for the purposes of Article 85(2) of [Regulation No 6/2002] where the right holder merely indicates what constitutes the individual character of the design or is the right holder obliged to prove that the design has individual character in accordance with Article 6 of that Regulation?’

Today the CJEU ruled as follows:

1.      Article 6 of Council Regulation ... 6/2002 ... is to be interpreted as meaning that, in order for a design to be considered to have individual character, the overall impression which that design produces on the informed user must be different from that produced on such a user not by a combination of features taken in isolation and drawn from a number of earlier designs, but by one or more earlier designs, taken individually.

2.      Article 85(2) of Regulation No 6/2002 must be interpreted as meaning that, in order for a Community design court to treat an unregistered Community design as valid, the right holder of that design is not required to prove that it has individual character within the meaning of Article 6 of that regulation, but need only indicate what constitutes the individual character of that design, that is to say, indicates what, in his view, are the element or elements of the design concerned which give it its individual character.

This ruling will be greeted with relief by design owners, since a design's individual character must be assessed in relation to each specific earlier design taken in turn, not by a patchwork or mosaic of design features of a multiplicity of earlier designs. Also, it's a lot easier to indicate what you believe to be the individual character of your design than to prove that such individual character exists.