Advocate General Szpunar has provided guidance on the scope of protection given to Registered Community Designs for modular systems, under Article 8(3) of the Community Design Regulation, and the perspective of the informed user in such situations ((Case C-211/24 LEGO A/S v Pozitív Energiaforrás Kft (ECLI:EU:C:2025:153) (6 March 2025)).

The building blocks: relevant law

Article 8 of the Community Design Regulation (the "Regulation") governs whether "Designs dictated by their technical function and designs of interconnections" can be given protection as Registered Community Designs (“RCDs").

Article 8(1) of the Regulation states that no protection will be given to "features of appearance of a product which are solely dictated by its technical function". 

 In addition, Article 8(2) states that no protection shall be given to: 

"… features of appearance of a product which must necessarily must necessarily be reproduced in their exact form and dimensions in order to permit the product in which the design is incorporated or to which it is applied to be mechanically connected to or placed in, around or against another product so that either product may perform its function."

However, some designers may be able to build around the Article 8(2) “must-fit” exclusion, by taking advantage of a limited exception in Article 8(3). This allows protection for "… a design serving the purpose of allowing the multiple assembly or connection of mutually interchangeable products within a modular system."

As a quick reminder, the scope of protection of an RCD includes any design which does not produce a different overall impression on the informed user (Article 10(1)). When assessing the scope of protection, the degree of freedom of the designer is taken into consideration (Article 10(2)).

Facts

This case concerned two RCDs held by Lego (the "Lego RCDs") for: 

1.a coupling component of a toy building set, comprising a cylinder with studs and two cross-section axles, perpendicular to each other and to the cylinder, which were connected to the cylinder through a cylindrical base:

2. a coupling component of a toy building set which was a modified variant of the Lego 2x1 studded brick, which had 2x1 studs on one of its sides:

Lego brought infringement and injunction proceedings against Pozitív Energiaforrás Kft. ("Pozitiv"), a Hungarian company which had sought to import toy building sets comprising building blocks, some of which allegedly infringed the Lego RCDs. 

Budapest reference

The Budapest High Court referred two questions to the CJEU on the scope of protection for RCDs under Articles 8(3) and 10 of the Regulation. 

The AG’s opinion only dealt with the first question. This was divided into three parts, which asked whether, when determining the scope of protection to be given to an RCD under Article 10, a domestic court could:

1. use as its reference point, an informed user who, with regard to the function of both the design and the product, possessed the technical knowledge to be expected of a sectoral expert;
2. consider an informed user to be one who compared the applicant’s design and the defendant’s product by carrying out a thorough, technical and methodical examination; and
3. assume that the informed user’s overall impression of the design and of the product was formed primarily of a technical opinion.

The AG’s opinion

The "informed user" in modular system design cases

The AG recalled from case law that the "informed user" was: 

• a fictitious person; 
• who was particularly observant due to personal experience or extensive sector knowledge;
• knew the various designs which existed in the sector concerned; 
• possessed a certain degree of knowledge of the features normally included in those designs; and
• as a result of their interest in the products concerned, showed a relatively high degree of attention when they used them.

Answering part (a) of the question, the AG said that the informed user therefore lay somewhere between the average consumer and a sectoral expert with detailed technical expertise – so a domestic court could not use the latter as its reference point.

Moreover, the informed user could not be assumed to have technical knowledge, and technical aspects should not impact their overall impression. The AG said this was no different in modular system design cases. While RCDs falling within Article 8(3) necessarily had a technical function, they were still designs, and therefore only concerned aspects of a product’s appearance.

Therefore, in answer to parts (b) and (c) of the question, only those aspects of a design’s appearance, and not of its technical function, could contribute to the informed user’s overall impression. 

The overall impression

In modular system design cases, the informed user could take into account the appearance of the product, both separately and when assembled with other components of the system, when forming their overall impression. 

However, the AG stated that the question of "overall impression" was only an intermediate step in assessing the scope of protection given to an RCD. The court would also need to consider other factors required by the Regulation, of which the informed user may not have been fully aware, such as the degree of freedom available to the designer, under Article 10(2). A well-known restriction on this design freedom was the existence of technical constraints. 

The AG stated that a court could consider a lack of design freedom not only for features of a product’s appearance which "must necessarily be reproduced in their exact form and dimensions" under Article 8(2), but also for features of a product’s appearance which were "solely dictated by the product’s technical function" under Article 8(1). This was because case law had recognised that the Article 8(3) exception applied not only to Article 8(2), but also to Article 8(1), where a design fell within both categories.

Indeed, in the AG’s view, it was "all the more the case" that a designer had little to no freedom for features of a product’s appearance which were solely dictated by the product’s technical function – in this case, interconnection. 

A low degree of design freedom for such features would therefore make it more likely (under the rule of inverse proportionality) that minor differences would suffice to produce a different overall impression on the informed user, meaning no infringement. 

This was the case in modular system product design cases, such as building bricks, where a high proportion of features of the product’s appearance were interconnection features dictated by the product’s technical function. 

Therefore, in assessing the scope of protection, it was permissible for the court to consider the degree of the designer’s freedom, including in developing the features of the product’s appearance that were necessary for interconnection.

Next steps

The AG’s opinion is not binding on the CJEU, which will itself decide the final answer. 

In the meantime, the AG’s observations on the informed user should provide welcome clarity to designers, having reinforced the key point that, even in modular systems cases under Article 8(3), RCDs protect those features of a product’s appearance, not technical aspects. Naturally, it should follow that the informed user would not be expected to be a sector expert with technical knowledge.

Also interesting is the AG’s view that the interconnection features of a product’s appearance are likely to be solely dictated by the product’s technical function, so that differences between these would be seen as ‘minor’ in the informed user’s overall impression when comparing different designs.