On 4 December 2025, the Court of Justice of the European Union (CJEU) delivered another judgement (the fourth in the last fifteen years) on questions related to the EU law stance regarding copyright protection for works of applied art, i.e. for the aesthetical configuration (shape or appearance) given to utilitarian objects.
After the rulings issued in 2011 on the Flos v Semeraro case (C‑168/09), in 2019 on the G-Star v Cofemel case (C-683/17), and in 2020 on the Brompton v Chedech / Get2Get case (C-833/18), the CJEU has elaborated, refined and expanded its teachings regarding the above captioned topic in a ruling issued on two combined cases - case C‑580/23 (Mio v Asplund) and case C‑795/23 (USM v Konektra). In this ruling, the CJEU, establishing binding interpretative guidelines of EU legislative texts, answered questions posed by national courts, respectively from Sweden and Germany, relating to the subsistence and infringement of copyright under EU law in works of applied art. These combined cases involved furniture designs.
Cofemel and originality as the sole requirement for protection
In its previous rulings, and more emphatically in the ruling on the Cofemel case, the CJEU had indicated that, in the light of the EU legislation on intellectual property, works of applied art must be treated like any other type of work for the purposes of copyright protection and that originality is the basic requirement that any work (including works of applied art) shall meet in order to be copyright protected.
In the Cofemel ruling the CJEU indicated that a work of applied art, notably the design of a utilitarian object, must be classified as a work for the purposes of EU Directive 2001/29 on copyright if it satisfies the two cumulative conditions that are required from any object or subject matter conceived by the human mind for that purpose by said Directive: (i) that such subject matter is identifiable with sufficient precision and objectivity, and (ii) that such subject matter is capable of being regarded as original, in the sense of being the author’s own intellectual creation.
In the same ruling, the CJEU specified that in order for a work (also a work of applied art) to be capable of being regarded as original, it is both necessary and sufficient that it reflects (it bears the imprint of) the personality of its author, as an expression of his or her (i) free and (ii) creative choices. And it further specified that the work or the characteristics of the work that have been dictated by technical considerations, rules or other constraints which have left no room for creative freedom, cannot be regarded as possessing the originality required for them to constitute a work for the purposes of copyright legislation.
The Cofemel ruling, therefore and amongst other things, obliges EU Member States that have statutory requirements that go beyond originality (e.g. recognized artistic character/value or striking visual effect) to protect works of applied art under copyright to remove such language and abandon such requirements.
Interpretative uncertainties after Cofemel
While fairly clear in most of its wording, the Cofemel ruling contains some passages whose wording has generated interpretative doubts amongst commentators and national courts. Some relate to the boundaries of the general concept of originality (what is needed for a “free” choice to be also considered a “creative” choice), others relate to the way the originality of works of applied art should be assessed in comparison with other types of works (paragraph 52 of the Cofemel ruling says that, although the protection of designs and the protection afforded by copyright law may be granted cumulatively to the same work/object, the latter can be envisaged “only in certain situations”, suggesting that the originality of works of applied art should be assessed in a stricter manner than the originality of all other works).
In the freshly issued Mio/Konektra ruling, the CJEU - while not reaching definitive clarity - refines, densifies, elaborates, and expands its previous rulings about copyright protection of works of applied art (notably the Cofemel ruling) and offers additional (and therefore valuable) guidance to EU Member State, national courts and the whole legal community regarding the general notion of originality (notably the concept of “creative choices”), the relationship between copyright protection and design protection, the criteria for assessing originality of works of applied art and the criteria for assessing copyright infringement in works of applied art.
As in the Cofemel ruling, in the Mio/Konektra ruling, the CJEU has broadly endorsed the Opinion of Advocate General Szpunar (AG Opinion). Since the ruling has been drafted in a more laconic manner than the AG Opinion, most of its residual obscurities can be resolved by reading it in connection with and in the light of said Opinion.
The main points of note of the Mio/Konektra ruling can be summarized as follows:
What does originality mean and how to recognize that a given work is the result of free and creative choices
Originality subsists in any work (also in works of applied art) when the work reflects the personality of its author, as an expression of his or her free and creative choices. The author is deemed to bear the imprint of his or her personality in the work whenever he or she creates a “unique work”, which, in the case of works of applied art, consists of giving a “unique appearance” to a utilitarian object.
Choices expressed by the author in the work (i.e. choices visible or perceptible to third parties through the work itself) which were dictated by constraints of any type, notably technical, ergonomic, safety, or constraints resulting from standards or conventions in the sector concerned, are not free and creative, nor are choices which, while free, do not bear the imprint of the author’s personality “by giving the work a unique appearance”.
The notions “unique work” and “unique appearance” were taken from the AG’s Opinion. The AG indicated that a work has a unique character when it is distinct from any similar subject matter previously created by others and that banal or completely insignificant choices are not creative choices and do not give rise to “unique works”. The CJEU has implicitly endorsed those stances.
The circumstance in which a work is similar or identical to a work previously created by another person constitutes a relevant indication of a low or absence of originality of that work. In the case of works of applied art where, due to the various constraints that typically in those fields limit authors’ freedom, the possibility of parallel independent creations cannot be completely ruled out and, if proved, such circumstance would lead to recognize originality in both works.
A work that solely reproduces available shapes can only be original if its author has expressed his or her creative choices in the arrangement of those shapes.
Where a work is a ‘variant’ of an already existing work created by another author, it may still be eligible for copyright protection as long as it can be regarded as an “inspired work”. That is to say, as a work that does not reproduce the creative elements of a prior work as such, but merely draws on it in some other way and is predominantly the expression of free and creative choices.
The relationship between copyright protection and design protection
A work of applied art (notably the appearance given to utilitarian objects) shall be classified as a ‘work’, for the purposes of Directive 2001/29, if it meets the originality requirement which is applicable to any kind of work.
The originality of works of applied art must therefore be assessed according to exactly the same requirements as those used to assess the originality of other types of subject matter. Different requirements (namely that of the work possessing novelty and individual character, that of the work provoking a striking visual effect or that of the work possessing a recognized artistic character/level) or stricter requirements (attaining a higher threshold of originality) cannot be applied to this end.
There is no automatic connection between the grant of protection under the law on designs and protection under the law of copyright. Moreover, the conditions for such protection, namely novelty and individual character, on one hand, and originality, on the other, must not be confused even if, in many occasions, their (separate) application to a given work leads to a similar result.
In effect, as the AG expressly indicated in the Opinion and the CJEU implicitly endorsed in its ruling, it may happen that a work of applied art is original (and therefore be protected by copyright law) even if it has no individual character, i.e., is not sufficiently distinctive in terms of visual appearance from existing shapes to meet the individual character requirement as established in the design legislation.
Moreover, the law of copyright does not lay down a requirement of novelty as such for assessing the originality of works of applied art, which means that the creation of a work of applied art which is identical to a work of applied art previously created by another person, while constituting a relevant indication of the lack of originality of the latter (for lack of creative choices) does not automatically and without further considerations, lead to depriving the work of originality since, due to the constraints that typically limit authors’ freedom in the field of works of applied art, it cannot be completely excluded that two authors of works of applied art may have made, in parallel and independently from each other, similar or even identical choices and that those choices may still be creative.
How to assess originality in works of applied art
In order to persuade a Court to declare that a work of applied art is original under the law of copyright, it must be demonstrated that the subject matter for which protection is claimed constitutes the expression of free and creative choices reflecting the personality of its author.
The free and creative nature of the choices made by the author of a work of applied art cannot be presumed since a work of applied art differs from other categories of works by the fact they are primarily utilitarian objects and such objects are the result of the author’s know how and choices, which may be dictated by technical, ergonomic or safety constraints or may result from standards or conventions adopted in the sector concerned.
Furthermore, it is not enough to demonstrate that the author reflected in the work choices that were not dictated by technical or other constraints. It cannot be presumed that free choices are also creative choices, i.e. arbitrary choices by which the author bears the imprint of his or her personality in the utilitarian object by giving a “unique appearance” to it.
Anything that could prove, directly or indirectly, that the work has a unique appearance as a result of free choices of its author is helpful in that respect. All the relevant aspects of each particular case, as they existed when that subject matter was designed, irrespective of the factors external to and subsequent to the creation, can be taken into consideration.
Opinions of experts in the concerned design field assessing the aesthetic aspects/characteristics of the concrete object concerned pointing out their non-functionality and their uniqueness in relation to the state of the art, while not sufficient in themselves, may therefore be helpful.
Reports describing in a detailed and precise manner the process followed by the author in the creation of the object, indicating his/her sources of inspiration, explaining the concrete aesthetic choices he/she made when designing the object and pointing out, in a precise manner, how they can be found and recognized in the concrete object may also be helpful.
Although not expressly mentioned by the CJEU, state-of-the-art searches for identical/similar objects showing that when the concrete object was designed objects with the same configuration or possessing the same or substantially similar aesthetic elements of the object for which protection is sought were not known to the public, may eventually be helpful.
The professional credentials of the author, the awards or recognitions of the author or concerning the object for which copyright protection is claimed, while not particularly relevant, may also be helpful.
How to assess copyright infringement in works of applied art
Copyright infringement is the consequence of the use of a work without the author’s authorization. The unauthorised use of a work is capable of constituting such an infringement even where it concerns a relatively minor part of that work, provided that said part expresses the author’s own intellectual creation.
A comparison of the overall impression created by two works of applied art is not the criterion that shall be used for the purpose of assessing copyright infringement of the first created work. Such criterion concerns the protection of designs not the protection of copyright.
In order to establish a copyright infringement in the field of works of applied art, it is necessary to find in the allegedly infringing utilitarian object an unauthorised use of the original elements of the protected work and this entails determining whether those elements have been reproduced in a recognisable manner (perceptibly reproduced) in said object. While the CJEU ruling does not expressly indicate to which eyes should the reproduction be recognizable, whether to the eyes of a (fictional) informed user of the utilitarian object concerned, or to the eyes of the judge in the light, inter alia, of opinions of experts in the design field concerned, considering the emphasis put by the CJEU in the idea that the regime established by the copyright legislation and the regime established by the design legislation serve different purposes and should not be confused, it is reasonable to assume that the “informed user criterion” shall be confined to the assessment of the infringement of design rights and should not be used by judges when assessing the subsistence of copyright infringements.
The intention of the alleged infringer is irrelevant in such an assessment
The degree of creative freedom (the possibilities of choice) exercised by the authors of the allegedly infringed work is not a factor that can be taken into consideration when assessing copyright infringement in relation to works of applied art. In other words, if a work is considered original, it will be granted the same scope of protection granted to any other original work.
Where two works of applied art are inspired by the same prior work, only the ‘new’ creative elements are original to the derivative work and only the reproduction of those new elements constitutes an infringement of copyright of the author of the first derivative work.
The fact that a utilitarian object follows the same aesthetic trend or current as the author of an earlier work does not constitute a copyright infringement unless specifically identifiable creative elements of that earlier work have been recognizably reproduced in the latter work.
In order to establish copyright infringement in works of applied art, the mere possibility of the existence of an independent creation from the alleged infringer cannot justify a refusal to grant copyright protection to the earlier created work. It is necessary for the alleged infringer to successfully prove that he did not use (reproduce) in its work the creative elements of the earlier work but that he has rather created his work in the context of a parallel independent creation process.
Progress and remaining uncertainties in copyright protection of applied art
It is not possible to establish standards of protection that allow us to determine in abstract terms and with total certainty whether a work of applied art is copyright protected. Such an ambition, as the AG has rightly pointed out, is utopian, since the classification of as a work in copyright law requires inevitably complex and, in part, subjective assessments which can only be made on a case-by-case basis. What the CJEU can do in order to prevent to the maximum possible extent divergent decisions from the Courts of the EU Member States is to formulate in the clearest and least ambiguous possible manner the abstract criteria that should be applied in the concrete cases by those courts.
In the Mio/Konektra ruling, the CJEU has accomplished this mission with a fair amount of success. Other referrals will certainly come on the same topics and commentators will certainly raise interrogations about certain parts of the ruling notably about those that brought for the first time to the table the notions of “unique appearance of a work” and of “reproduction in a recognizable manner in the allegedly infringing work of the creative elements of a protected work”, but it must be said that relevant progress has been made in the clarification and the densification of the interpretative guidelines established in previous rulings.
