In 2006 YSL registered designs for two of its handbags. In 2009 the Swedish fashion chain appealed to the Office for Harmonization in the Internal Market (OHIM) for these to be invalidated on the grounds the bags lacked distinctive character, and using one of its previous, similar designs as an example.
The appeal was initially rejected by OHIM in 2013.
Today, judges at the European Court of Justice ruled that there are “substantial” differences in the disputed designs registered by YSL and those of the bag previously produced by H&M.
The court said the three main differences are the overall shape, structure and surface finish of the bag. It also noted that the straps and handle of the bags are designed to be carried in different ways.
The Court’s view is that the starting point for assessing a design’s individual character is how an informed user perceives that design. While the average person might struggle to see much of a difference in some competing retail products, from a legal perspective it will be the perceived views of a much more knowledgeable customer of specific products whose designs are in question that counts.
The judgment confirms that it may not be necessary for designers to come up with something ‘radically’ different to what is already available on the market in order for their designs to qualify for community design rights protection, and this is especially the case where there are statutory or technical constraints on products that limit the extent of freedom designers have when creating their designs.