In a judgement handed down today, the Court of Justice of the European Union has just delivered a ruling that settles a long heated dispute between H&M and the French fashion house Yves Saint Laurent.

Under EU design law, in order for a design to be successfully registered it must be 'novel,' that is if no identical design has been made available to the public, and it must have ‘individual character,’ that is a requirement where an “informed user" must find the overall impression of the design different from other designs which are available to the public.

Yves Saint Laurent in 2006 was granted the registration of two Community designs by the Office for Harmonisation in the Internal Market (‘OHIM’), which were proposed to be applied to ‘handbags’. In 2009, the fast fashion retailer Hennes & Mauritz (‘H&M’) filed two applications to OHIM for a declaration of invalidity in respect of the registered designs, the cancellation of the designs were based on the view that YSL’s designs lacked ‘individual character’ in support of which the Swedish retailer referred to a earlier rights to a prior design for bags they held.

The courts rejected H&M applications of invalidity in 2013 and now the General Court of the Court of Justice of the European Union (CJEU) agrees, and in today’s judgment, the Court has dismissed the actions of H&M.

Regarding the comparison of the overall impressions produced by the disputed YSL design and by the earlier H&M design, The courts have held that the differences between the designs at issue are ‘significant’ and similarities ‘insignificant.’ The courts held that they differed as to three features which decisively influenced their overall “visual appearance, namely the overall shape, structure and surface finish of the bag.” In particular, the Court pointed out that the straps and the handle of the designs of the two marks manifestly lend themselves to different uses inasmuch as the H&M bags could be worn over the shoulder and the YSL bags could be exclusively carried by hand.

The fashion industry has design at its centre, and contrary to earlier research conducted on design that suggests that design law and the EU design rights system is under utilised in fashion (See Raustiala and Sprigman 2006, The Piracy Paradox: Innovation and Intellectual Property in Fashion Design) empirical research shows that fashion brands are actually using design law and the design rights system more frequently as a strategy to protect the outward appearance of a product design (See research conducted by Tania Phipps-Rufus 2015).

This judgement confirms that in assessing whether a design has individual character, an ‘informed user ‘is a user that “knows the various designs which exist in the sector and possesses a certain degree of knowledge with regard to the features which those designs normally include and, as a result of his interest in the products concerned, shows a relatively high degree of attention,” to fashion. This means that the courts in these types of cases value the views of more than just your ‘average’ fashion consumer. A victory for Yves Saint Laurent, but whether a victory to the fashion industry as a whole? The judgment still confirms that the threshold for registration of EU designs is relatively low, and it’s not necessary to come up with a design profoundly different to what already exists in the marketplace in order for your design to be registered as a community design.

H&M may appeal against this judgment to the European Court of Justice (ECJ), the highest court of the EU and has around two months to do so, we’ll keep you updated with more news.