Yves Saint Laurent SAS, filed an application for registration of a Community design with the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) pursuant to Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs.
This design was applied to ‘handbags’ in Class 03-01 of the Locarno Agreement Establishing an International Classification for Industrial Designs of 8 October 1968. The design was challenged by H&M Hennes & Mauritz BV & Co. KG. It filed an application for a declaration of invalidity in respect of the handbag based on Articles 4 to 9 of Regulation No 6/2002 and on Article 25(1)(c) to (f) or (g) of that regulation. In its application it claimed that the contested design had no individual character within the meaning of Article 6 of that regulation.
The application was dismissed and in the context of fashion items like handbags, the designer’s degree of freedom was high.
A design is defined in the regulations as “the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture and/or materials of the product itself and/or its ornamentation” (Art. 3). A Designs may be protected if:they are novel, that is if no identical design has been made available to the public; they have individual character, that is the “informed user” would find it different from other designs which are available to the public.