Design vs Copyright: the CJEU draws a clear line
1. Design and copyrights: different objectives, different thresholds
In two judgments delivered in December 2025 (CJEU, 4 December 2025, “Mio/konektra”, C-580-23 and C-795/23 ; CJEU, 18 December 2025, “Deity Shoes”, C 323/24), the Court of Justice of the European Union (CJEU) confirmed a fundamental point for businesses: design protection and copyright protection pursue different objectives and are subject to different criteria.
While to be protected a ‘work’ under copyright requires an original subject matter reflecting the author’s personality, as an expression of his free and creative choices, the purpose of design law is to protect a the appearance of product that is new and has an individual character. The copyrighted work is considered independently from its incorporation into a product, while the design is linked to a product that has some functional aspect, and it is usually registered for one or several classes of product.
In practice, the same creation may qualify for both copyright and design protection, provided the respective conditions are met. For example, the represented skirt, which is protected as a registered design (registered on 5 June 2025 for article of clothing) is protected for its overall appearance. In addition, if considered original, the skirt may also be protected under copyright, independently of its registration as a design.
2. Design protection: novelty and individual character – no minimum degree of creation
In Deity Shoes (C-323/24), the CJEU was asked whether design protection requires proof of a “genuine design activity” or a minimum level of creativity, particularly where products are assembled by selecting and slightly modifying pre-existing catalogue components.
The Court answered in the negative.
First, it reaffirmed that only two cumulative conditions apply under Regulation 6/2002: novelty and individual character. These conditions require a comparative assessment of appearances, not the demonstration that the design is the result of a minimum degree of creation. Design protection cannot be refused on the ground that the designer merely combined existing elements or carried out limited customisation, provided that the resulting appearance produces a different overall impression. Businesses may view this as an opportunity to rely on design protection for AI-generated outputs rather than on copyright.
The Court also rejected the argument that following fashion trends would reduce the designers’ freedom and that as a result, minor differences may be sufficient for a design to produce a different overall impression. While the visual aspect of a product cannot be protected by design if it dictated by its technical function, as is often the case with the shape of components to be assembled in a complex product (for ex. spare parts for cars), fashion trends do not restrict design freedom in the same way. Likewise, a regulatory constraint, linked to a standardisation process, limits freedom more substantially than general fashion trends imposed by temporary market preferences. In other words, fashion does not exclude design protection, it is all about whether the new shape produces (or not) a different overall impression on the informed user.
3. Copyright reminder: originality is not novelty
By contrast, in Mio (C-580/23 and C-795/23) concerning copyright protection for works of applied art, the CJEU reiterated that copyright protection is subject to a different test. Copyright requires originality, understood as the expression of the author’s free and creative choices reflecting his personality. Choices purely dictated by technical, functional or other objective constraints, or choices that fail to confer a unique personal imprint do not meet this threshold.
Importantly, the Court clarified that originality is different from novelty and cannot be assessed with reference to the overall visual impression (criteria that are central to design law). For copyright to be infringed, it is necessary to determine whether creative elements of the protected work have been reproduced in a recognisable manner in the allegedly infringing product.
Where works share a common source of inspiration, only the reproduction of identifiable creative elements which are considered original can constitute copyright infringement. Following the same artistic trend as such is insufficient.
4. Practical takeaways for businesses
Taken together, these two judgments send a coherent message:
- Design rights remain accessible for market-driven products, without the need to establish they rely on artistic creativity.
- Copyright protection for applied art remains conditional on evidence of free and creative choices leading to the product’s shape. This should be assessed under the same originality standard as for other works. In practice, this also means that documenting the creative process and the choices made by the designer is key to substantiating originality, should copyright protection be claimed or enforced. Companies are thus advised to keep track of the designers involved and of the process leading to the final product.
- Cumulation of protection remains possible, but only where each regime’s distinct requirements are independently satisfied.
For rights holders, the lesson is straightforward: design rights and copyrights are complementary but not interchangeable tools. Strategic IP protection starts with understanding which protection threshold genuinely applies, to put in place a documenting procedure so as to be able to demonstrate it is met and to take an informed decision as to whether to register or not.
Also, there is an important takeaway for the protection of AI-generated shapes: while copyright protection might not work in the absence of human choices, design protection remains an alternative to consider.
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This news is not a legal advice or a legal opinion. You should seek advice from a legal counsel of your choice before acting upon any of the information in this news.