Introduction

On 4 December 2025, the Court of Justice of the European Union (CJEU) delivered its long-awaited judgment in the joint Mio/Konektra cases regarding the alleged copyright infringements in furniture design, providing critical guidance for manufacturers, designers, retailers, and intellectual property practitioners navigating the complex intersection of copyright and design protection for utilitarian objects. 

Background & Context

In a nutshell, the cases revolve around the requirements for a ‘work’ in the copyright sense, based on two cases from Sweden and Germany. The Swedish case concerns the question of whether a table is protected by copyright and what criteria can be used to determine whether a similar but not identical table that allegedly infringes copyright actually does so. The German case deals solely with the question of whether a modular shelving system is protected by copyright, as in this case there was an identical copy where, if copyright protection were granted, infringement would be inevitable.

The cases were referred to the CJEU because, in the Cofemel ruling, it decided that the concept of ‘work’ covered by Article 2(a) of Directive 2001/29/EC constitutes ‘an autonomous concept of EU law which must be interpreted and applied uniformly’.

• Distinction between copyright and design rights: How do they relate to each other?
• Requirements for a work: What should be taken into account when determining ‘originality’ and how should the court determine whether the work reflects ‘the personality of its author’?
• Infringement test: How is it determined whether a similar product infringes copyright?

We have discussed the cases and the opinion of Advocate General Szpunar earlier in this blog. Now, almost exactly half a year later, the CJEU announced its decision.

Main Analysis

I. No hierarchical relationship between design and copyright protection

“There is no relationship of rule and exception between design protection and copyright protection, such that, when assessing the originality of subject matter of applied art, it is necessary to apply stricter requirements than are laid down for other types of works.”

This is not really new, but no news is good news in this regard. In fact, the German Federal Court of Justice had only referred to this question because the CJEU itself had made a somewhat ambiguous statement in the Cofemel decision in marg. no. 51-52, stating that the granting of copyright protection for an object protected as a design should not lead to ‘the objectives and effectiveness of these two types of protection being impaired’. Although the same object could be protected cumulatively under design law and copyright law, ‘this cumulation is only possible in certain cases’. 

Some had deduced from this that copyright protection must remain the exception and that, in order to ensure this, a higher ‘level of creativity’ must be required for works of applied art than for other types of works.

The CJEU rejects this. It clarifies the passage from Cofemel, stating that it has always been meant to imply that copyright and design law have different requirements for protection. While design law revolves around ‘novelty’ and ‘individual character’, copyright is granted for the concept of ‘work’, which constitutes ‘an autonomous concept of EU law which must be interpreted and applied uniformly’, requiring two cumulative conditions to be satisfied: 

1. There needs to exist an original subject matter, which is the author’s own intellectual creation;
2. Classification as a work is reserved to the elements that are the expression of such creation.

It is therefore necessary to pay strict attention to whether the specific requirements of the respective law are met, without looking to the other law.

In reality, however, this will often mean that parallel protection under copyright and design law is at least possible. Protection under design law may fail due to lack of novelty – either because the property right was not registered in time or because the maximum term of protection has long since expired. The features of ‘individual character’ under design law on the one hand and ‘the author’s own intellectual creation’ under copyright law on the other may be conceptually distinct, but in practice they will often exist simultaneously.

II. Assessment of originality: objective expression over subjective intent

“A work constitutes subject matter which reflects the personality of its author as an expression of his or her free and creative choices. Choices dictated by various constraints, particularly technical, which bound that author during the creation of that subject matter are not free and creative, and nor are choices which, while free, do not bear the imprint of the author’s personality by giving that subject matter a unique appearance. 

Circumstances such as the author’s intentions during the creative process, his or her sources of inspiration and the use of shapes that are already available, the likelihood of a similar independent creation or the recognition of that subject matter in professional circles may be taken into account where appropriate, but are not, in any event, necessary or decisive for the purpose of establishing the originality of the subject matter for which protection is claimed.”

This is clearly the most important part of the judgment. A work must be original. It must express the personality of its creator. This is the case if it reflects his or her free and creative decisions. The author’s use of already available shapes does not in itself exclude originality, as subject matter composed solely of available shapes may be original where its author has expressed creative choices in the arrangement of those shapes. Even inspiration from existing works does not exclude eligibility for copyright protection as long as the creative elements reproduced remain therein and constitute the imprint of that author’s personality, since novelty is not a requirement of copyright. 

This is good news for rights holders, especially since the expression of creative choices must be determined according to objective criteria. 

There was also the question of whether the intentions and thoughts of the author during the creative process should be decisive. This would have meant that copyright protection would often have had to be denied because the plaintiff would have had difficulty providing evidence. After all, who can prove exactly in 2025 what a designer was thinking in 1950 or 1960 when creating an object? Proponents of this view were said to be opposed to the granting copyright to utility items. The CJEU is having none of this.

However, those who had hoped for clear criteria from the CJEU will also be disappointed. The CJEU primarily strengthens its criterion of originality conceptually, distinguishing it from other concepts and terms from other areas of law and rejecting certain previously discussed concepts. However, it will remain the task of the national courts to fill the terms chosen by the CJEU with life. In this respect, a considerable element of uncertainty will remain in the future, particularly since the CJEU left the door open for continuing to take into account “circumstances” of other concepts, be they the subjective intentions of the author or recognition of the potential artwork in professional circles, “where appropriate”. 

III. The infringement test

“In order to establish a copyright infringement, it is necessary to determine whether creative elements of the protected work have been reproduced in a recognisable manner in the allegedly infringing subject matter. The same overall visual impression created by the two subject matters at issue and the degree of originality of the work concerned are irrelevant. The possibility of a similar creation cannot justify a refusal to grant protection.”

This last point in the ruling is also explosive. While the reference to the fact that the same overall visual impression is not decisive in copyright law primarily serves to distinguish it (conceptually) from design law, it seems all the more surprising that the degree of originality of the work should also be irrelevant.

Apart from the clear-cut cases of identical copycat, whether copyright has been infringed depends in many countries on the scope of protection of the work – the more creative and significant it is assessed to be in terms of copyright protection, the further the protection against imitations can extend into the realm of similarity. The CJEU rejects this in a surprisingly categoric manner.

On closer inspection, however, it is not so extreme: the focus is once again on originality, and specifically on the elements that constitute originality and thus copyright protection. These must be recognisable in the alleged infringing product. As explained above, copyright is also possible for objects that make use of freely available elements and are subject to technical constraints in some cases, as long as there are other elements to which the author can apply free decisions and his personality. It is not sufficient for a finding of copyright infringement that the objects are similar. Rather, the similarities must relate specifically to the elements in which the author’s personality is expressed. From this perspective, it makes sense, although it is still up to the courts to determine how and according to which criteria it should be determined in each individual case whether the author’s personality is expressed in the imitated product.

The last sentence of the guiding principle is also important: it does not matter whether the infringing object is itself protected by copyright. A parallel creation does not preclude the infringement of copyrights of the older work. In German copyright law, this criterion has long been relevant for distinguishing between imitation and adaptation: adaptation does not constitute copyright infringement only if the older work used in the adaptation ‘fades’ against the background of the new elements and the older work is therefore no longer recognisable.

However, there have always been cases in which the creator of the adaptation acquired their own copyright but still used the older work. In such cases, under German copyright law, the new work cannot be exploited without the consent of the author of the older work. The CJEU’s considerations seem to be moving in the same direction.

Key Issues & Considerations

1. The “Verkshöjd” debate resolved – or is it?

Both Swedish and German copyright law know ‘the threshold of originality’ (in Swedish: ‘verkshöjd’), meaning only subject matter which has attained a certain degree of independence and originality giving expression to the author’s individuality should be granted copyright protection. For a long time, there has been debate in these countries – and many others – as to whether a higher threshold should be required for works of applied art in order to prevent copyright from being applied to overly banal everyday objects and to strengthen design as an independent property right.

The Court’s judgment definitively rejects any heightened threshold for applied art. This means that national laws that provide for additional features, such as ‘artistic value’ in Italy, are now clearly not in line with EU law. Instead, the CJEU requires the same originality standard across all categories of works whilst emphasising that originality cannot be presumed and must be objectively demonstrated through visible creative choices – which, however, might prove just as difficult in countries still critical to extending copyright to such subject matter.

2. Practical challenges in evidence

The CJEU’s emphasis on objective expression in the work itself is better than having to prove subjective thoughts and feelings of the author at the time of creation, but still creates practical challenges: designers and manufacturers must now ensure that creative choices are not merely made but are visibly expressed in the final product.

3. The technical function exclusion

The judgment confirms that subject matter may be eligible for copyright protection even if its realisation has in part been dictated by technical considerations, provided that this has not prevented the author from reflecting personality through free and creative choices. This creates a grey area for functional furniture design where aesthetic and technical considerations are inextricably linked. Manufacturers must carefully document which design elements serve purely aesthetic purposes versus those dictated by function.

4. Strengthening design as an independent IP right

Even though the decision clearly focuses on copyright, the CJEU simultaneously strengthens the EU design as an independent IP right.

Wherever there is a dispute as to whether an object expresses the ‘free and creative decision that expresses the personality of the creator’, protection as a design may be considered, with the advantage of rapid registration and the possibility of EU-wide enforcement (which does generally not exist in copyright law, though some Dutch courts granted pan-European injunctions based on copyright infringement anyway – but that is another story worth telling another time).

However, this presupposes that the rights holders do not forget the design as an IP right and, in particular, registers it promptly after the presentation of a product. The advantage of copyright lies in the long term of protection, up to 70 years after the death of the author, without expensive registration. The advantage of the design lies in its quick acquisition and, in some cases, easier enforceability.

For further consultation on how this judgment affects your business or filing practice, please contact a member of our product design team.