The second day of the MARQUES Design Symposium in Frankfurt included sessions on the value of design registrations, unfair competition and using trade marks to protect product design.

Value of designs

Mikas Miniotas, AAA Legal Services in Estonia and Co-Chair of the MARQUES Designs Team, introduced and moderated Session 3: The added value of design registrations.

Lynn Schreier, On Holding AG, Switzerland, speaking in a personal capacity, said the key question to ask is: what is the purpose behind a design registration? The reasons may include to protect innovation, deter competitors, enforce against copies or imitations, gain leverage in commercial negotiations or as a marketing tool.

In the fashion industry, a major trend is that time to market has got shorter. This means that, in many cases, the IP counsel may not see the final design before they have filed applications. The different requirements in each country also have to be taken into account.

In addition, said Lynn: “Product designs are hard to protect. Often the most commercial products are the most simple from a design perspective.” That means that protection can be relatively narrow. She added that design registrations are useful for online enforcement, and can be uploaded to online portals, while copyright can be harder to prove. When it comes to counterfeits, she said: “I’m usually looking for a fast solution.”

Kal Rosenstein, Chief Experience Officer of WDC26 gave a talk during Thursday evening’s dinner, focusing on “Design and Democracy”

Delivering a presentation on behalf of Eva Maierski, Lubberger Lehment, Germany, who was unable to attend, Mikas talked about the boundaries between copyright and design law. He focused on Deity v Mundorama and Stay Design, a design infringement action concerning shoes. The CJEU said that an EU design does not require genuine design activity; modifications to visual characteristics made ad hoc do not preclude individual character; and fashion trends are not likely to limit the degree of freedom of the designer.

The Court stressed that the law protects the appearance of a product. “The Court said: We are not concerned with how it was created. That is not important for the validity of the design – unless there is bad faith,” said Mikas. A design “does not require a minimum degree of creation,” according to the Court.

Mikas raised the question whether AI-created designs could be protected, and also how can you know if something is created by AI?

In the final presentation in this session, John Coldham, Gowling WLG (UK) LLP provided a UK perspective asking: “What works in real life against real-life problems?” He discussed a case brought by Marks & Spencer against Aldi over gin bottles. “The principal point of this case is that M&S succeeded, so please do consider registering products or parts of products as designs,” said John.

John also talked about UK unregistered designs, which cover shape only and last 10-15 years. He said the 2015 G-Star case concerning jeans was a good illustration of how powerful UK unregistered designs can be. As surface decoration is excluded, UK unregistered designs may even be more useful than registered designs in some cases. The important takeaway for businesses is to keep records, he concluded.

Harmonising unfair competition in Europe

In Session 4, Jorn Torenbosch of Utrecht University summarised his research on the harmonisation of unfair competition. He argued that: “Through the backdoor of international law, the entire area of unfair competition law has been harmonised to some degree in the EU.” This conclusion was based on the application of the TRIPs Agreement and the Paris Convention. While in principle the EU is not bound by the Paris Convention, the EU can succeed member states in international commitments when competence has been transferred to it in full.

In practice this means, said Jorn, that the CJEU has the final say on what is effective protection against unfair competition, when an act of competition is contrary to honest practices and what is the meaning of the prohibition of all acts of such a nature as to create confusion. “You can make it a European question instead of a national one,” he said.

Trade marks for product designs

Session 5: Trade mark protection of product designs was moderated by Jesse Hofhuis, Hofhuis, The Netherlands and featured Catherine Shapiro, Airwair International Limited – Dr. Martens, UK; Michael Goldmann, Harte-Bavendamm, Germany; and Xavier Ragot, Christian Louboutin SAS, France. Jesse began the discussion by showing an image of the Birkenstock sandal and asking: is this an indication of origin in a trade mark sense?

Catherine set out how she explains trade mark law to people in the business. “Over the years Dr. Martens has distilled our design language into a set of protectable trade dress features,” she said. These include a distinctive yellow-on-black heel loop, the yellow welt stitch and the two-tone grooved sole edge. Every one of its products, including boots, sandals and bags, is inspired by the original 1460 boot.

She stressed that many products have design features that are protectable as trade marks, and it is important to use them consistently over time to drive equity in that design. Dr. Martens has a variety of trade mark rights in different countries, said Catherine, adding: “It’s very hard to design around our trade mark portfolio if you have a business that’s global or pan-European.”

“By enforcing, our trade dress becomes even more recognisable. We enhance the distinctiveness, making it easier to deal with lookalikes,” she said, adding that the company is “very proactive” in finding lookalikes and monitoring agreements. It has dealt with thousands of infringements over the years.

Michael shared some examples of trade marks of product designs in the EU, including trade marks for the shape of goods, pattern marks and position marks. He noted that trade mark law is sceptical about product designs, based on concerns about whether consumers use them to identify origin and about perpetual protection. “The CJEU interprets all the exclusions in Article 7(1)(e) quite broadly,” he said.

MIchael pointed out that  the Catch 22 of protecting product designs is: “If a product design is ordinary or common, then it is not distinctive. But if it’s very attractive it comes under the substantial value exclusion.” Imaginative add-ons can help work around the exclusions, he said. He concluded that there is uncertainty and in fact the functional exclusions are rarely raised by examiners, giving examples of product design marks that have been registered by EUIPO.  

Answering questions from Jesse, Xavier discussed challenges in protecting Louboutin’s trade marks for its red sole in jurisdictions including Japan and China. He said obtaining an EUTM was a game-changer for Louboutin. He also touched on its success in bringing enforcement actions under both trade mark and unfair competition laws.

MARQUES Chair Claudia Pappas concluded the Symposium, describing it as “inspiring”. “We have many more aspects to cover, maybe in two years’ time,” she said.

MARQUES Chair Claudia Pappas of Thyssenkrupp (right) welcomed more than 120 people to the first MARQUES Design Symposium today. The event, taking place in Frankfurt, focuses on protecting product design – from cradle to eternity.

Claudia described designs as “close to my heart” and “under-rated”. She said that “now is the perfect time” for a conference on design protection, following the recent EU reforms and the CJEU judgment in Mio/Konektra, and that Frankfurt is “the perfect place” as it is World Design Capital 2026.

Claudia added that product design is particularly interesting “from both the legal point of view and the brand owner perspective”. It involves a mix of design, trade mark, copyright and unfair competition law, and lots of strategic and jurisdictional questions.

Designs and designers

Moïra Truijens, of Klos CS, The Netherlands and Secretary of the MARQUES Designs Team introduced and moderated Session 1: The Design and Its Designer (right).

Sven Klos of Klos CS said this area of the law is “riddled with prejudice”. Discussing the Mio case, he observed that some works are “more equal than others” when it comes to copyright protection. “When it’s something you can see and use, all of a sudden we run into problems – but not always.” Some functional works, including furniture, buildings and tools, are protected by copyright, but other are not. He gave various examples of copyright-protected products in the Netherlands and said it is also the only country to provide copyright protection for the Rubik’s Cube.

“We know what it is to be lost in the jungle of words,” said Sven. He distinguished between the objective approach – which he described as “skeleton and flesh” – and the non-objective approach, which requires the application of a qualitative test.

Sven said the Advocate General’s opinion in Mio/Konektra did not provide predictability and did not define “free and creative choices”. The Court’s judgment emphasised the “unique appearance” of the product, inviting the questions: what is unique? What are aesthetic considerations? It is hard to prove that a design choice was not random: this requires a variety of evidence including the designer’s own intention. “I hate prejudice; I love the rule of law,” said Sven.

Monica Leenders, Philips, The Netherlands provided an in-house perspective. Philips has over 100 years of design and today design is integrated into each business. In 2024, the Philips brand obtained 137 design awards. Using the Avent bottle warmer as an example, she said there were many different ways to design products: the Avent bottle has a lot of design features that are not dictated by its function and it was essential to emphasise these in enforcement actions. It had also won several design awards. The company has been successful in a design infringement action over the Avent bottle.

Questions in this session covered the design process, the role of prior art, the divergence between Europe and the US, the degree of originality required after Mio, the role of trade dress in the US and how to prove copyright infringement.

Proving creation and ownership

Session 2: Proof of Creation and Ownership was moderated Simon Casinader, K&L Gates, UK who is a member of the MARQUES Copyright Team. He emphasised the role of IP practitioners in helping to capture the growing value in intangible assets.

Speakers Olivia Dhordain, Outboxing IP, Switzerland (and former in-house counsel at Richemont) and Sam Breeze, K&L Gates, USA discussed the role of in-house and external counsel in the design creation and development process. “There’s a lot of unknowns in the US as far as what design patents can do,” said Sam.

Olivia said that designers often ask her what is important to date during their work and her response is: “Only you can know.” She described how IP counsel can empower the design team in documenting creation, and how a Blockchain-based tool helped with that. Adopting that tool not only simplified the document process, but also led to further discussions about design protection and strategy. “As an IP lawyer, you have to be innovative yourself and prepared to take risks,” she said.

The panel discussed best practices for documenting design processes, including who is involved, timing, which tools are used and how things are recorded and communicated. They also addressed the use of AI in the design process and the consequences of this for IP protection. Sam described how designers use AI for storyboard creation while Olivia emphasised transparency when using agencies. “It’s about risk management, talking and educating,” she said.

Olivia added that AI has potential help designers make use of their archive of creative works and can help in designing around existing works. Sam stressed the need to train designers, including on the datasets they are using. The panel agreed that IP practitioners have an important role to play in making sure designs are legally robust and valuable. “IP is about making sure there is a better product at the end,” said Simon.

Workshops

There were three interactive workshops in the afternoon, covering: strategic use of the different types of protection; multi-national design registrations (pictured above); and online enforcement. In the evening, there is a reception, dinner and talk.

The Design Symposium concludes tomorrow. Look out for a further post on the Class 99 blog for details of tomorrow’s sessions.

WIPO has published details of its webinars on the Hague System over the next three months. The first of these takes place today (21 January) at 17.00 Geneva time.

There are three webinar topics, each of which is presented in three languages:

• From National to International: When and how to use the Hague System (English: 21 January, French: 29 January and Spanish: 4 February)
• Getting Started with eHague: Understanding the Interface, Key Functions, and the Complete Filing Process (English: 18 February, French: 24 February and Spanish: 4 March)
• Avoiding Refusals Starts with the Views: How to Prepare Effective Reproductions (English: 18 March, French: 26 March, Spanish: 1 April).

You can find further details, including the times of each webinar and links to register, on the WIPO website here.

All the webinars are free and can be accessed via the internet or dial-in.

The EUIPO received 130,849 EU design (formerly RCD) applications in 2025, a 6% increase on 2024. This was the second consecutive year of record-breaking numbers.

Direct applications made up 84.31% of the total, while International Designs accounted for 15.69%.

China was the leading country of origin, overtaking Germany. It accounted for 39,144 (29.2%) of applications.

Germany took second place with 17,535 applications (13.4%), followed by Italy with 13,739 (10.5%), the USA with 11,312 (8.65%) and Poland with 5,497 (4.2%).

For the first time, applications from outside the EU (52%) exceeded those from the EU (48%).

Applications from China increased by 18.4%, while those from the UK increased by 17.8%. Within the EU, there was significant growth in applications from Austria (25.8%), Spain (17.2%) and Poland (13.9%).

Read more on EUIPO’s website here (from where the image is taken).

The first MARQUES Design Symposium, taking place in Frankfurt on 29 and 30 January, is now fully booked.

MARQUES is delighted that this inaugural event has been so popular with design practitioners and looks forward to welcoming all registered delegates to Frankfurt later this month.

The Symposium, titled “Product Design – From Cradle to Eternity”, will include sessions on: designs and designers; proof of creation and ownership in a world driven by AI; the added value of design registration; the harmonization of unfair competition; and trade mark protection of product design.

There will also be workshops on strategic use of the different types of protection; multi-national design registrations; and online enforcement.

Speakers include designers, in-house counsel and lawyers specializing in design law from various jurisdictions.

Reports from the Symposium will be posted on the Class 99 blog. Make sure you subscribe to receive e-mail alerts when new posts are made.

To find out more about the Design Symposium, and future MARQUES events, please visit the events page on the MARQUES website.

The jury for the 10^th edition of the DesignEuropa Awards will be chaired by Anna Barbara, President, POLI.design and Board Member, World Design Organization.

She leads a jury comprising 12 professionals from 11 countries, whose expertise spans design, innovation, business, law and IP.

Full details of all the jury members are available on the DesignEuropa Awards website.

This year’s awards ceremony is being organized by EUIPO with the support of the Slovenian IP Office and will take place in Ljubljana, Slovenia in September.

There will be four categories of award: Entrepreneurs and Small Companies; Industry; Next Generation Design; and Lifetime Achievement.

You can make applications and nominations for all the categories via the website until 20 February 2026. The awards are open to any person, entity or institution of any nationality that owns a valid registered European Union design.

On 4 December 2025, the Court of Justice of the European Union (CJEU) delivered its judgment in the joined cases Mio (C‑580/23) and Konektra (C‑795/23). Both cases revolve around an interesting and topical theme: copyright protection of works of applied art.

The ruling was discussed in this post on the Class 99 blog, published on 11 December. In this follow-up post, IP specialists from EU Member States and other jurisdictions analyse the judgment.

Denmark

From a Danish perspective, the Mio/Konektra judgment largely confirms what has already been recognised in Danish case law; works of applied art are protected according to the same originality standard as any other copyright-protected work, without any additional “artistic value” requirement, and originality cannot be presumed but must be substantiated.

What is likely to influence Danish case law going forward is the CJEU’s clear statement that the mere absence of a different overall impression between the two subject matters cannot, in itself, establish infringement.

Danish courts have traditionally relied heavily on an overall-impression comparison when assessing copyright infringement. It will therefore be interesting to see whether the case law develops in light of the CJEU’s clarification that the correct assessment must focus on whether the creative elements of the protected work have been reproduced in a recognisable manner in the allegedly infringing work.

Germany

For decades, German copyright law applied a stricter threshold for works of applied art than for other categories of works. Courts demanded “considerable artistic height” or “substantial aesthetic distinctiveness” before granting copyright protection. This was to prevent the long copyright term from covering everyday or purely functional designs, which were instead protected under design law.

In 2013, the Federal Court of Justice (BGH) overturned this approach in its Birthday Train decision, holding that the general definition of a “work” in Section 2(2) UrhG “only personal intellectual creations” applies equally to all categories.

This clarified that there is no rule–exception relationship in German law: the originality threshold for works of applied art is identical to that for all other copyright protected works. Design and copyright protection rely on different criteria — novelty and individual character for designs, originality for copyright — and cumulative protection is possible.

EU harmonised design law helped reduce the risk of over extension and made clear that the two regimes can coexist and yet the old jurisdiction kind of remained in the legal minds and following CJEU’s Cofemel ruling saw room for divergent interpretations.

The CJEU’s decision now removes any lingering uncertainty. There is no “rule–exception” relationship between design and copyright. The originality threshold for works of applied art is the same as for all other copyright works.

This aligns with the BGH’s post-2013 approach and removes any residual doubt about a higher threshold for applied art. The CJEU decision further confirms that German courts must apply an objective originality test: originality is judged by the work’s form as it stood at the time of creation, not by the creator’s/creations later recognition or subjective awareness.

The creative process is relevant only insofar as it is manifested in the features of the finished work. Functional or technical constraints do not bar protection if free and creative choices — expressive of the author’s personality — are still visible in the object; the same applies to individual parts of such objects.

For Germany, this ruling validates the post-2013 approach, removes any remaining doubt about special thresholds for applied art, and may expand copyright protection for functional designs — while increasing infringement exposure for competitors emulating distinctive German design icons.

Hungary

Anett Pogácsás (associate professor, Pázmány Péter Catholic University) points out that the long-awaited decision regarding the assessment of originality cannot be considered a change, essentially, it has always been clear in Hungarian case law to what extent certain circumstances of the creative process can be relevant factors.

But at the same time, the case highlights that copyright law cannot provide a more tangible abstract concept in relation to the emergence of the protection. This also means that “the assessment of originality essentially arises in the event of an infringement – i.e. (although Hungarian law does not contain a presumption of work, only a presumption of authorship), we essentially work with a kind of presumption of work: the assessment of originality takes place in the event of specific infringing acts (since protection is not linked to registration).”

This also determines the infringement test – Hungarian law has so far followed the “pattern” outlined in Mio, but the CJEU’s wording has given rise to serious concerns regarding the meaning of “recognisability”. “Since the case itself refers to the Pelham case, theoretically we only need to deal with recognisability in the same sense, which has already existed in Hungarian legal practice: that is, the use of the expressed individual, original element itself is considered use in the sense of copyright law.”

It is also worth noting that, in this respect, one circumstance relating to the work, namely the time of its creation, does become an important factor, demonstrating the significance of voluntary registrations (or even parallel protection in the form of design protection) in the course of proving infringement.

“At the same time, the case highlights not only the differences between Member States in relation to both the assessment of originality and the infringement test: if the recognisability test was included in the judgment with the intention of narrowing the concept of use, and does not merely mean that use (and infringement) only occurs in the case of the reproduction of creative elements of a protected work, then, intentionally or unintentionally, the Mio case will cause the biggest waves in relation to AI.”

Netherlands

Professor Tobias Cohen Jehoram (Rotterdam University) recalls the fact that he received a lot of criticism (from Germany) when he said the BGH was wrong in the Birkenstock case. “Now the CJEU agrees with me, in the Mio and USM Haller cases.”

Professor Dirk Visser (Leiden University) notes that the CJEU comes up with new formulation of the criteria for copyright protection and, for the first time, a formulation of the criteria for infringement. "However, these criteria are no less vague or subjective than previous wordings," he notes The problem remains that nobody knows exactly what reflecting the author’s personality means and exactly what creative choices are.

Although Visser believes that the total impression criterion for copyright infringement used in the Netherlands since 1995 is off the table, assistant professor Peter Teunissen (Radboud University) believes that this criterion is still usable: “Although the Supreme Court has consistently upheld the total impressions criterion in its jurisprudence, it has repeatedly emphasised that this does not involve a global comparison of utilitarian objects, but rather about the reproduction of protected features.”

Norway

Professor Torger Kielland (University of Bergen) has the following comments.

With its judgment in Mio/Konektra the CJEU has delivered an early Christmas present to copyright lawyers all over Europe and there is a lot to unpack.

First, the judgment removes any lingering doubts some may have had concerning the relationship between copyright and design protection after Cofemel, stating unequivocally that there are no stricter requirements for copyright protection for designs.

Second, it is welcome that the court reaffirms its statements from Brompton Bicycle, clarifying that the possibility of making free choices is not sufficient, but that the author must have actually made such choices, so that the finished work reflects his or her personality. In addition, the court surveys a plethora of criteria for assessing originality. But by stating that none of these criteria are decisive, the court still leaves a lot of room for interpretation to the member states.

Third, by introducing a criterion of “recognisability” in the infringement test, the CJEU seems to require something in addition to the presence of creative elements of the protected works. Whether this will hold in practice will likely depend on who must recognise the creative elements, as an expert may perceive “recognisability” differently from an ordinary observer.

Switzerland

From a Swiss perspective, the Mio and USM Haller judgment confirms a development that has been taking shape since the landmark Fire Ring ruling of the Swiss Federal Supreme Court (ATF 148 III 305, 17 June 2022).

The Court reiterates that originality hinges on the presence of free and creative choices that are objectively perceptible in the protected object. This mirrors the Swiss Federal Tribunal’s move away from the former, more demanding threshold applied to works of applied art. Both systems now treat functional constraints in the same manner: when they leave no room for creative freedom, originality is excluded, but a work remains protectable if the author was still able to imprint recognisable creative choices despite technical requirements.

It is also important to note that the Court will not consider the creative process, the author’s intention or later recognition by specialised circles as decisive factors. This echoes the Swiss insistence on examining the final expression rather than the subjective dimension of creation.

Swiss practice also aligns with the Court’s strict distinction between copyright and design law. The CJEU’s rejection of the “overall impression” criteria for assessing infringement under copyright confirms what Swiss courts already apply: here the relevant question is whether recognisable creative elements have been reproduced, not whether the contested object produces a similar look and feel.

The Mio and USM Haller judgment confirms an alignment between EU and Swiss doctrine in the field of applied art. The assessment method developed in Swiss practice since the Fire Ring case can be transposed almost seamlessly to EU disputes involving functional design objects, and vice versa.

United Kingdom

In relation to the UK, commentary addresses the rulings but highlights that following Brexit, UK courts are no longer bound by EU decisions. Commentary also highlights that in the UK copyright protection for works of applied art is narrower, as works must fall within a closed list, typically as “works of artistic craftsmanship”.

English courts continue to address what that actually means – what is artistic, and what constitutes craftsmanship, for example as in Equisafety Ltd v Woof Wear Ltd [2024] EWHC 2478 (IPEC) and Waterrower (UK) Ltd v Liking Ltd (t/a Topiom) [2024] EWHC 2806 (IPEC), building on previous decisions in Response Clothing Ltd v Edinburgh Woollen Mill Ltd [2020] EWHC 148 (IPEC), Lucasfilfm Ltd v Ainsworth [2008] EWHC 1878 Ch, George Hensher Ltd v Restawile Upholstery (Lancs) Ltd [1976] A.C. 64,) and others. A continuing presence of uncertainty is mentioned, noting that there is a different bar for protection compared to the EU.

Other commentary focuses on the fact that whilst the EU seems to be inching slowly towards giving more protection under copyright for fashion items, the UK position remains complicated by the presence of the above-mentioned exhaustive list of works that can be protected under copyright, but also a regular reversion of the courts to determine each case on its own facts. It is notable that in the 2024 Equisafety case, the judgement refers to and applies Cofemel – Sociedade de Vestuario SA v G-Star Raw CV (C-683/17).

This post was compiled by Evert van Gelderen (Clairfort, the Netherlands), member of the MARQUES Copyright Team and written together with the other members of this team: Sofie Beiter Arreskov (Plesner, Denmark), Thomas Hertl (Arnecke Sibeth Dabelstein, Germany), Enikő Karsay (SBGK, Hungary), Thomas Hvammen Nicholson (Abion, Norway), Nathalie Codignola (PRINS, Switzerland) and Jamie Watt (Harper Macleod LLP, United Kingdom), with thanks for gathering the comments with respect to their respective countries. And special thanks to assistant-professor Anett Pogácsás (Hungary) and professor Torger Kielland (Norway) for providing their comments for this post.