Fashion retailer, H&M has been unsuccessful in its application to the EU General Court to invalidate YSL’s Community designs for handbags. Community designs protect designs for up to 25 years in every EU Member State. In November 2006, YSL successfully registered two of its designs for handbags. H&M had applied for a declaration of invalidity for these two YSL designs arguing that the designs had no individual character.
The Court considered whether YSL’s designs would produce an overall impression on an informed user that is different from the overall impression of H&M’s designs. In its analysis, the Court confirmed that the informed user was ‘an informed woman who is interested, as a possible user, in handbags’ who is ‘neither an average purchaser of handbags nor a particularly attentive expert, but someone in between who is familiar with the product’.H&M argued that the differences between its designs and those registered by YSL were not significant enough to cause the informed user to have a different overall impression. However, the Court disagreed and held that the differences were significant enough to affect the overall impression while the similarities were insignificant in the overall impression that they produce. The handbags differed as YSL’s design was of classic, angular lines and formal simplicity and looked like it was one piece of leather without divisions, while H&M’s design was more of a ‘worked bag’, divided into three sections with curves.
YSL’s design was mostly smooth while H&M’s design had pronounced decorative motifs that were raised. The similarities included that the handles on both designs had straps attached to the rest of the bag by rings reinforced by rivets, however, the Court considered it to be significant that the straps and handles were used in different ways, as YSL’s design could only be carried by hand and H&M’s design could be carried on the shoulder.
This case demonstrates the factors that courts will take into account when deciding whether one design creates a different overall impression from another. This process may be tested again if H&M decides to appeal the decision to the European Court of Justice.
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