Novelty, originality, and EC design law
I wanted to respond quickly to Shyam's post on the intricacies of EC law. The EC's "registered community design", which is the primary (EC-wide) form of regulation providing a nominal high-IP rule for fashion designs, has two eligibility criteria. A design must be "novel", and it must have "individual character", such that an "informed user" is left with the "overall impression" that the design for which protection is sought is different from designs already offered to the public.
Two quick points: (1) "Novel" as understood by the EC law is not equivalent to "novelty" as we understand that term from U.S. patent law. The EC design law meaning of "novel", as this decision denying an application from Honda for the design of a portable generator makes clear, is not particularly demanding -- the design for which protection is sought simply cannot be identical to a previously available design.
(2) The meaning of the "individual character" requirement is harder to pin down. It is clear that this second prong means that the new design must be more than a trivial variation of an existing design. The variation must be something that produces an "overall impression" in an informed user that the designs are different.
Well, that doesn't seem too constraining either. Take a look at the pictures of the various driving shoes in our paper. My take is that all of these different designs have individual character, despite their appropriation from the Tod shoe of important design elements.
In short, at least w/r/t the EC law, the entry conditions don't seem patent-like, and don't set up barriers that depart significantly from the originality requirement of U.S. copyright law.