High street retailer H&M has lost its challenge against the registration of a handbag design by YSL as community design in a long running legal battle.
In 2006, YSL applied to register a design for one of its handbags as a community design with the Office for Harmonization in the Internal Market (OHIM). One of the requirements to protect a design this way is that it must be original and cannot be commonplace in any of the EU member states.
H&M filed for a declaration of invalidity by the OHIM, arguing that YSL’s design lacked individual character and therefore did not justify registration. The high street giant presented a similar handbag design from a few years earlier to illustrate the lack of individual character of YSL’s design.
OHIM rejected H&M’s application and on appeal the Third Board of Appeal of OHIM concluded that the differences between the designs were significant to create a different overall impression to an informed user, including the shape, structure and surface finish of the design. In this case the high degree of freedom enjoyed by the designer did not impact the finding that the designs produced a different overall impression on the informed user.
H&M appealed to the EU General Court which upheld the Board of Appeal’s decision.
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