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Between originality and individual character: protecting design objects under EU copyright and design law
Two CJEU rulings handed down in December 2025 — Mio/USM Haller (C-580/23 and C-795/23) and Deity Shoes (C-323/24) — bring fundamental clarity to the European protection framework for objects of applied art. In copyright law, no heightened originality requirement applies to objects of applied art; in design law, protection requires neither a minimum degree of creative effort nor a particular design process — novelty and individual character suffice. Both rulings affirm the autonomy and equal standing of the two regimes. This Legal Insight analyses the key findings and draws practical conclusions for IP protection strategies.
Copyright: no higher bar for applied art but difficult infringement test (Mio/USM Haller)
Both preliminary reference proceedings concerned the copyright protection of designer furniture. The referring Swedish court and the German Federal Court of Justice asked, in essence, how originality is to be assessed for objects of applied art, which factors should be considered, and whether a rule-exception relationship exists between design law and copyright law.
No heightened requirements: The CJEU clarified that objects of applied art are to be assessed under the same criteria as all other categories of works. The potential availability of design protection does not justify the application of any heightened requirements.
The originality test: The decisive factor is solely whether the author's personality is reflected in the object through free and creative choices. Creativity cannot be presumed; the court must identify the creative decisions embodied in the object's form. However, it remains unclear how creativity is to be assessed in concrete terms and what it means for the author's personality to be reflected in the object.
External circumstances are not decisive: Exhibitions, awards, recognition in design circles, the creator's intentions and the fact that independent third parties have created or could create similar works may be taken into account but are not as such decisive within the originality assessment.
Infringement: Copyright does not confer absolute protection against identical or similar works but only protection against use of the own work without the author's consent. A court must determine whether the creative elements of the protected work were used without consent and whether they are recognisably reproduced in the allegedly infringing object. A similar overall impression of the objects is not sufficient. Nor is the use of identical designs necessarily infringing if they constitute independent parallel creations.
Design law: no minimum degree of creative effort (Deity Shoes)
Deity Shoes holds several registered EU designs (REUDs) for shoes based on Chinese supplier catalogues, where customisation options are limited to the selection of pre-defined components such as colour, material and placement of buckles.
No creative effort required beyond novelty and individual character: The CJEU confirmed that design law does not require any minimum degree of design effort beyond novelty and individual character. Protection requires only a comparison between the prior art and the design for which protection is claimed, since the EU design regime focuses on the overall impression produced on the informed user.
Catalogue designs can have individual character: The fact that a design's features are predetermined by supplier catalogues and that the designer's modifications are limited to minor changes to elements offered by the supplier does not in itself preclude individual character under Article 6 of the EU Design Regulation (EUDR). An REUD may consist of various older designs, provided that the resulting design produces a different overall impression on the informed user.
Fashion trends do not limit design freedom: The CJEU draws a clear line between trend-influenced features and those dictated by technical or regulatory constraints: the latter are unavoidable and permanent, whereas fashion by its nature evolves. Fashion trends cannot be regarded as a factor limiting the designer's freedom, and features resulting from fashion trends carry no less weight in the overall impression assessment.
Key differences at a glance
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Design law |
Copyright |
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Creation of protection |
Registration (or, for unregistered EU designs, first disclosure) |
With the act of creation; no registration required |
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Protection requirements |
Protection exists where the design differs from prior designs in more than immaterial details (novelty) and produces a different overall impression on the informed user (individual character). The benchmark is an objective comparison with the prior art; whether the designer knew of existing designs is irrelevant. Protection of a parallel creation is excluded. |
Protection exists where the creator has made free and creative choices that are reflected in the work. Whether identical or similar works already exist is irrelevant if they were not known to or used by the creator. The same or similar designs can theoretically be protected in favour of multiple authors if the works are independent parallel creations. |
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Infringement |
An infringement occurs where a later design does not produce a different overall impression on the informed user compared to the earlier registered design. Whether the infringer knew of the earlier design is irrelevant; no defence of independent parallel creation is available. |
An infringement occurs where the author was aware of the earlier work and used it as a template in a manner that makes protectable elements of the earlier work recognisable in the later design. |
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Duration |
Maximum 25 years from filing |
From creation until 70 years after the author's death |
Practical tip: a dual protection strategy for design-driven products
Companies should systematically assess their products for both protection dimensions:
Bottom line
Design and copyright protection are autonomous, equally ranked regimes, and each must always be assessed separately. An REUD does not require any minimum degree of creative effort; even catalogue-based or trend-conforming designs are protectable, provided they produce a different overall impression on the informed user compared with the prior art. Copyright requires the recognisable reflection of free creative choices; there is no heightened threshold for applied art.
authors: Dominik Hofmarcher, Birgit Kapeller-Hirsch
Dominik
Hofmarcher
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