To obtain protection for industrial designs, the most important requirement is that the design concerned is new and has an "individual character". This individuality has been the subject of much debate by the courts.
According to the Regulation on Community Designs, the overall impression produced by a design with an individual character differs from the impression produced by previous designs. These previous designs are referred to as the existing design corpus. Last year, in the Apple/Samsung case, the Dutch Supreme Court ruled that this corpus comprises all previous designs taken together. In other words, each of the individual features and those features combined constitute the corpus.
Famous fashion case
One famous case involving the question of individual character is the case of Karen Millen Fashions (Karen Millen) vs. Dunnes Stores (Dunnes). In 2005 Karen Millen designed a striped blouse and a black knit top, which it placed on sale in Ireland. Retail chain Dunnes had the garments copied and offered them for sale. When challenged by Karen Millen, Dunnes defended itself by arguing that Millen”s clothing does not possess an individual character, because certain features of the copied garments appeared in previous designs.
Further to this case, the European Court of Justice (CoJ) recently gave its interpretation of the term "individual character". Unlike the Supreme Court one year previously, the court considers that the design corpus merely consists of all previous designs considered individually and not, therefore, the (imaginary) combination of features of previous designs. In reaching that conclusion, the CoJ concurs with the design holder. Establishing individual character is more a matter of comparison only with designs viewed individually.