Can a fancy dress design be declared invalid on the basis of another dress inspired by the same fictional character and previously marketed on an online platform?

On June 8, 2023, the Invalidity Division of the EUIPO answered in the affirmative, pointing out the lack of individual character of the registered design on the basis of Article 6 of the Community Design Regulation (CDR).

Pursuant to this Article, a design has individual character when it produces an overall impression on the informed user that differs from the one produced by a previously disclosed design.

The assessment of individual character factors the designer’s degree of freedom in developing his/her design, which itself influences the importance given to the differences between two designs. In the case at stake, the Office points out that the fact that the intended purpose of a product requires the presence of certain features does not automatically imply a limitation of the designer’s freedom 

Fancy dresses mainly aim to imitate a particular person from a film or story, but this constraint alone is not sufficient to consider that the dress designer’s degree of freedom is restricted.

Therefore, the minor differences, relating to the shape of the cape and the intensity of the shade of blue, which exist between the two dress designs imitating the outfit of the character Elsa in the animated feature film "Frozen" are insufficient to characterise a different overall impression.

In the absence of an individual character, the design is invalid.

Finally, it is interesting to note that the Office based its decision on Article 6 CDR (individual character) and not Article 5 CDR (novelty) insofar as the back of the fancy dress sold on Amazon is not visible and the comparison between the two designs cannot therefore be complete.

This decision may be appealed within 2 months.