In a recent ruling that highlights the intricacies of design protection within the fashion and footwear sectors, the Cancellation Division of the European Union Intellectual Property Office (EUIPO) delivered a setback to Nike Innovate C.V. on January 24. The EUIPO invalidated one of Nike’s registered Community designs after Italian designer Alfredo Langella successfully contested its validity, asserting that it lacked the requisite individual character as mandated by EU law. The focal point of the dispute was Nike’s Registered Community Design No. 003400472-0001, which pertained to a specific upper element of the Air Huarache Run Ultra sneaker, characterized by a lateral strap resembling an inverted “C.” Originally registered in September 2016, this design was claimed with priority from a U.S. design patent for the ornamental design of a shoe upper. Langella’s challenge hinged on Article 25(1)(b) of the Community Design Regulation, arguing that Nike’s design was not sufficiently distinct from an earlier U.S. design patent dating back to 1992, asserting that the differences were trivial and amounted to mere technical modifications. In its defense, Nike maintained that the competitive landscape of footwear is so dense that even slight design variations are noticeable to discerning consumers, contending that its design represents a distinct lateral element rather than the entire upper. The EUIPO conducted a comprehensive four-step analysis, considering the footwear sector, the informed user’s perspective, the designer's creative freedom, and the disclosure of prior art. Ultimately, the EUIPO concluded that the contested design failed to exhibit the requisite uniqueness, thus invalidating it. This ruling poses significant implications for Nike and the broader industry, emphasizing the need for brands to clearly differentiate their designs from existing works to secure protection, particularly in an environment where design histories are extensive and competition is fierce. As brands navigate this complex landscape, they may need to reassess their design strategies to ensure that new iterations stand apart from prior designs.
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