Paving the way for another significant development in the European intellectual property landscape, Advocate General (AG) Szpunar recently issued an Opinion clarifying the criteria for copyright protection of works of applied art. This Opinion—delivered in Joined Cases C-580/23 (Mio AB & Others v Galleri Mikael & Thomas Asplund Aktiebolag) and C-795/23 (konektra GmbH & LN v USM U. Schärer Söhne AG)—revisits questions of originality, scope of protection, and the interplay between design law and copyright law.

Background and Context

The protection of product design is not limited to the design as an IP right in the narrower sense. In fact, companies are increasingly trying to take action against imitations of their products on the grounds of copyright infringement. 

However, even after some key decisions from European Court of Justice, notably in the Cofemel and Brompton Bicycle cases (see our previous article on this case here), it is still unclear in detail what conditions must be met for applied art to be protected by copyright and whether higher requirements should be imposed on works of applied art because the term of protection – up to 70 years after the death of the creator – is much longer than for registered designs, which is limited to a maximum of 25 years.

Two proceedings are currently pending before the European Court of Justice and both arise from disputes concerning furniture. In the Mio case, the Swedish courts entertained whether a table design is sufficiently original to warrant copyright protection. In the other, the German courts considered a modular furniture system’s copyright status. These proceedings reached an important milestone with the Advocate General issuing his opinion.

The AG’s opinion

1. Relationship Between Design Protection and Copyright

AG Szpunar reiterated that EU law does not establish a “rule-and-exception” relationship between design protection and copyright protection. Each system pursues distinct goals and uses different criteria:

• Design law: Assesses novelty and individual character by comparing the product to prior designs.
• Copyright law: Protects an original work when it expresses the free and creative choices of its author, reflecting the author’s personal imprint, irrespective of novelty.

Contrary to suggestions that works of applied art require a higher creative threshold, the Opinion confirms that all works—whether “pure art” or utilitarian creations—must meet the same “originality” standard in copyright.

2. Criteria for Determining Originality

Copyright covers only those features of a work that are the author’s own intellectual creation. These must be visible in the work itself, not merely asserted. The AG clarified:

• Subject Matter Identifiable in the Work Itself: The assessment should focus on whether the author’s free and creative choices are expressed in the appearance of the design, rather than on the author’s state of mind.
• Constraints and Common Elements: Utilitarian objects often include constraints dictated by functionality or technical norms. Such constraints limit creative freedom. If only minimal free choices remain, courts must carefully evaluate whether those choices impart the author’s personal imprint.

Additionally, factors such as the creator’s publicly stated intentions, the presence of existing known shapes, possible independent parallel creations, and any recognition by professional circles can support the originality analysis but are never conclusive alone.

3. Criteria for assessing infringement

Finally, the Swedish court in the Mio proceedings sought advice on which test to apply in assessing infringement with rather long and specific questions, including sub-questions. The AG’s opinion on this is ultimately rather short, stating:

• Recognisability: The court hearing a case must determine whether creative elements of the protected work have been reproduced in a recognisable manner in the allegedly infringing subject matter.
• No overall impression: The mere absence of a different overall impression between the two subject matter at issue cannot be regarded as sufficient to establish infringement.
• No “degree of originality”: The concept of the “degree of originality” of the protected work is not relevant for the purposes of that assessment.

In this context, the AG remarks that the Swedish court's terminology and mindset “seems to be modelled on the logic of design law”. He does not agree with that and states that while a similar independent creation does not constitute copyright infringement, the mere possibility of such an independent creation cannot, however, justify a refusal of copyright protection where the reproduction of creative elements of the protected work has been established.

Assessment

AG Szpunar’s Opinion ultimately adds little that is new. However, this comes as no surprise, as the real surprise was that the Swedish and German courts had referred the matter to the CJEU in the first place.

• Design and copyright: The renewed confirmation that copyright and design law are independent areas of law whose protection requirements are not interdependent is welcome and commendable. Both areas have their own requirements. The AG clearly states there is no relationship of rule and exception, and this is exactly the answer the German Federal Court of Justice wanted to hear. It is to be hoped that the CJEU will confirm this as clear and unambiguous as possible to dispel any doubts some national courts still had after Cofemel and Brompton Bicycle, partly due to ambiguous wording used by the CJEU in those decisions.
• Originality: Further, it is worth agreeing that the possibility of making free choices during the creative process does not give rise to a presumption of creativity. However, we were already aware of that. Similarly, it shouldn’t be new that circumstances such as the author's intentions during the creative process, his sources of inspiration and the use of known forms, the likelihood of an independent similar creation or the recognition of the object in professional circles do not, on their own, support a finding of originality. However, the referring courts had requested more clarification on this specific point as to how far these factors may be taken into account.
  In this context of originality, the AG's opinion contains a side swipe at the view of the German Federal Court of Justice. The AG believes that, in relation to the determination of originality, the terms “artistic” and “aesthetic” should not be used because the term “artistic” contains “a value judgement in the sense of a relatively high degree of artistic achievement” and not every aesthetic choice necessarily reflects the personality of the author. In fact, the Federal Court of Justice bases copyright protection on whether “the aesthetic content of a creation has reached such a level that, in the opinion of circles receptive to art and reasonably familiar with artistic views, it can be considered an artistic achievement” and sees this definition as consistent with the “free creative decisions that reflect the personality of the author”. The question arises as to whether the AG’s criticism is valid on this point. A work of applied art remains a work of art. In this respect, it does not feel wrong to demand an “artistic achievement”, especially since the Federal Court of Justice does not itself make a value judgement as to when art exists, but refers to “circles receptive to art and reasonably familiar with artistic views”.
• Infringement: The AG ultimately evades the questions raised by the Swedish court in the Mio proceedings regarding the criteria for determining an infringement. The answer is very general, which stands in stark contrast to the very specific question. This may also be due to the fact that it is ultimately up to the referring court itself to answer the questions in the individual case. It is correct that the terms in the question referred for a preliminary ruling, although relating to copyright, appear to originate from design law. However, since imitations of varying degrees of similarity also occur within the scope of copyright law, a rule of thumb like “the more original the original, the greater the scope of protection” would not seem fundamentally farfetched in copyright law either. 

Outlook

Let's see what the CJEU has to say on the matter. It often follows the opinion of the Advocate General. In this case, it is to be hoped that it will be more specific regarding the requirements for originality and infringement. Otherwise, we will be little better informed than before the judgment on the decisive points.

For further information or to discuss how this opinion of the Advocate General may affect your business and IP strategies, please be in touch with members of our product design team.