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 eagerly awaited in copyright circles. This blog post, by Evert van Gelderen of the MARQUES Copyright Team, discusses the CJEU’s key considerations with regard to the requirements for protection and the infringement test. A follow-up post will include initial comments by IP specialists from various EU Member States.

Background

Mio (C‑580/23), Sweden

The Swedish company Galleri Mikael & Thomas Asplund AB (Asplund) designs and manufactures interior furniture, including dining tables from the Palais Royal series.

Mio e‑handel AB and Mio Försäljning AB (Mio) are active in the retail trade of furniture and home decoration and sold, among other things, dining tables from the Cord series.

At the end of 2021, Asplund initiated legal proceedings against Mio. Asplund claimed that the Palais Royal tables were protected by copyright and that Mio had infringed that copyright with the Cord tables. Asplund won the case at first instance.

On appeal, the Swedish court (Svea hovrätt, Patent- och marknadsöverdomstol) deemed it necessary to refer questions to the CJEU for a preliminary ruling, in particular on (i) the copyright protection of such tables and (ii) the criteria for assessing this.

Konektra (C‑795/23), Germany

The Konektra case (also known as the USM Haller case) concerns the modular furniture system of USM U. Schärer Söhne AG (USM), characterised by chrome-plated tubes and spherical connectors into which interchangeable coloured metal panels can be inserted.

Konektra GmbH (Konektra) offered (initially) spare and extension parts with a very similar design and colour scheme.

According to USM, Konektra no longer limits itself to offering spare parts, but has moved on to manufacturing, offering and selling a furniture system that is identical to that of USM. USM therefore believes that Konektra is infringing its copyright and has initiated legal proceedings.

USM’s copyright claims were upheld in the first instance but rejected on appeal. The Bundesgerichtshof then referred preliminary questions to the CJEU.

The opinion of AG Szpunar

On 8 May 2025, the opinion of Advocate General (AG) Szpunar was published. This opinion was previously discussed in this post on the MARQUES Class 99 blog.

In its judgment, the CJEU largely concurs with the opinion and refers to it explicitly on a number of occasions (see paragraphs 62, 71, 78 and 90).

Judgment of the CJEU

No higher or other requirements for works of applied art

The first question discussed by the CJEU was whether stricter requirements apply to works of applied art than to other works, partly in light of the relationship between design rights and copyright.

The CJEU answered this question in the negative: there is no rule-exception relationship between design rights and copyright. A work of applied art must be assessed on the basis of the same criteria of originality as other works.

Although the protection reserved for designs and copyright are not mutually exclusive (Cofemel, paragraph 43), and may be granted cumulatively to the same subject matter, concurrent protection is limited to certain situations (Cofemel, paragraph 52), since an author is deemed to create a unique work bearing the imprint of his or her personality, which, as such, is protected by copyright.

In other words, design and copyright protection are not mutually exclusive and may be granted cumulatively, provided that the requirements for both rights are met.

Assessment of originality: focus on form and creative choices

The CJEU reiterates that the concept of ‘work’ presupposes two cumulative conditions to be met: 1) the object must be original, in the sense that it constitutes the author’s own intellectual creation; and 2) classification as a work is reserved to the elements that are the expression of such creation (see paragraphs 48 and 61 and Cofemel, paragraph 29 and the case law cited there).

The CJEU stresses that the requirement that the author’s personality be reflected in the subject matter for which protection is claimed, through the expression of that author’s free and creative choices, is decisive for the concept of ‘originality’ and, consequently, for copyright protection under EU law (see paragraph 50).

Choices dictated by various constraints, particularly technical, that bound that author during the creation of that subject matter are not free and creative. Nor are choices which, while free, do not bear the imprint of the author’s personality by giving that subject matter a unique appearance (see paragraphs 49 and 82).

According to the CJEU, the AG rightly stated that the nature of the works in question must be taken into account when assessing originality. In the case of works of applied art, this involves a particular area of tension. After all, these are functional objects, in which technical, ergonomic and safety requirements, among other things, (partly) limit design freedom.

Referring to Brompton Bicycle (paragraph 26), the CJEU emphasises that copyright protection remains possible as long as those limitations have not prevented the author from making free and creative choices that express his or her personality (see paragraphs 62-63).

It follows that, under the law of copyright, the creative nature of the choices made by the author of the subject matter cannot be presumed. If the author has made choices that are not dictated by technical or other limitations, it cannot be assumed that these are (therefore) creative choices. The court must seek out and identify those choices specifically in the shape of the subject matter in order to be able to declare it protected by copyright (see paragraph 65).

This applies both to the object as a whole and to individual parts or components; components may also be protected works (paragraph 66 and Infopaq, paragraphs 38 and 39).

A striking or aesthetic effect is not sufficient in itself. Such a visual effect does not make it possible to determine whether there is an intellectual creation that reflects the personality of the creator (paragraphs 67 and 68).

Creative process and intentions of the author

The preliminary questions also concerned the relevance of the creative process and the author’s intentions when assessing the required originality. The CJEU confirms that intentions belong to the domain of ideas, which as such are not protected by copyright (see paragraph 74 and Brompton Bicycle, paragraph 27).

The court may take into account the creative process and the author’s intentions, insofar as these are actually expressed in the object itself. However, the assessment of originality may not be based solely on this (see paragraph 75).

Other relevant factors

When assessing the originality of a work, all relevant factors of the case as they existed at the time the object was designed must be taken into account, regardless of factors that arose after the creation of the object and independently of it, according to established case law (see Brompton Bicycle, paragraph 37). 

The Court reviews whether the following factors are relevant:

• Use of existing shapes: Originality is not excluded. An object consisting exclusively of available forms may be an original work if creative choices are expressed in the arrangement of those forms (paragraph 78).
• Inspiration from existing works: Protection will be limited to identifying the author’s own creative elements (paragraph 79).
• Variant of on an earlier work by the same author: A variation may be protected as long as the original creative elements are retained and reflect the personality of the author concerned (paragraph 79).
• Variation on an earlier work by other authors: A work is considered to be inspired if it does not literally copy the creative elements of another work but is inspired by it in a different way. In that case, it may be a protected work provided that the requirements of originality are met (paragraph 79).
• Existence of similar or identical older works: This may be an indication of a low degree of originality, but does not rule out independent parallel design, especially in the case of works of applied art (paragraph 80).
• Presentation in museums or trade fairs and recognition in professional circles: These are circumstances that arise after creation and are not necessary or decisive, although they may be taken into account (paragraph 81).

Infringement test: recognisable reproduction central

In addition to the test and criteria for determining originality, another important part of the judgment concerns the infringement test. The CJEU makes it clear that the copyright criterion is not whether two objects create the same overall impression. This is a criterion in design law (paragraph 87).

Copyright infringement occurs if: 1) originally protected creative elements of the work have been used without permission and 2) these elements have been reproduced in a recognisable manner in the allegedly infringing object (paragraph 86, also see Pelham, paragraph 39).

Further the CJEU emphasises, with reference to Brompton Bicycle (paragraph 21) and Infopaq (paragraph 47), that in copyright law, infringement is the result of the use of a work without the author’s consent and that infringement may also occur if only a relatively small part of the work is used, insofar as that small part expresses the author’s intellectual creation. 

Factors in the infringement test

The CJEU reviews whether certain factors are relevant to the infringement test:

• Degree of originality: Not relevant to the scope of protection; once protected because the work meets the criteria. In that case the protection is not inferior (paragraph 88).
• Different shapes with the same technical result: Although this shows that there is a possibility of choices, it is not decisive in assessing the factors which influenced the choices made by the author (paragraph 89).
• Will or intention of the infringer: This is irrelevant (paragraph 90).
• Same source of inspiration: When two objects are inspired by the same source, only the new creative elements in the object in question can be original. The reproduction of these new elements may constitute an infringement of copyright (paragraph 90).
• Same trend or movement: The mere fact that someone follows the same trend or artistic movement as the author of an older work does not constitute infringement if no specifically identifiable creative elements from that older work have been adopted (paragraph 90).
• Independent creation: The independent creation of an equivalent object is not entirely impossible and does not constitute copyright infringement, provided that this can be demonstrated (paragraph 91).

A follow-up post with analysis on the impact in EU Member States will be published on the Class 99 blog on 12 December 2025.

The first MARQUES Design Symposium takes place in Frankfurt, Germany on 29^th and 30^th January 2026.

You can find out more about the programme, themes and speakers in the latest episode of the Talking MARQUES podcast, which features Inga George, Co-Chair of the MARQUES Designs Team and Jesse Hofhuis, member of the Programming Team.

The title of the Symposium is “Product Design – From Cradle to Eternity”. It 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 specialising in design law from various jurisdictions.

The Symposium is taking place during World Design Capital (WDC) 2026 and is listed on its website. Frankfurt RheinMain has been designated WDC 2026 due to its “long-standing commitment to design that is rooted in social cohesion, urban transformation and the empowerment of more democratic futures”.

Book your place at the Design Symposium now on the dedicated page on the MARQUES website.

Photo shows the Frankfurt Spin Tower, where the Symposium will take place.

Class 99 readers may be interested in an announcement from EUIPO that a new functionality of eSearch Plus was implemented on 14 November 2025, to improve the accessibility of Design-related non-confidential documents.

According to EUIPO, the documents are planned to be released in stages, starting with documents from 2025.

From January 2026, documents from previous years will gradually be added, resulting in access to all previous non-confidential documents during the first half of 2026.

Correspondence submitted after 4 November 2025 will become automatically publicly available unless marked as confidential.  

As indicated in EUIPO Guidelines on registered EU designs - Part A - General rules (chapter 3.1.6 Confidentiality) , users can request confidentiality when submitting a document and at a later stage.

In such cases, users contact the EUIPO Information Centre. The Office examines the confidentiality claim and marks the documents concerned according to the outcome.

This initiative is part of the EUIPO’s Strategic Plan 2030 and WP2025, reflecting the Office’s efforts to improve transparency and respond to user needs.

By making more design-related documents accessible, EUIPO says it aims to provide a more efficient, transparent and user-friendly experience for all stakeholders.

Mikas Miniotas, Co-Chair of the MARQUES Designs Team, commented: “We are pleased that design users’ concerns regarding accessibility of design-related documents have been addressed. Users will now be able to access documents related to designs as they have been long used to for trade marks.”

Evert van Gelderen of the MARQUES Copyright Team reports on a recent copyright case in the Netherlands, which found that certain Birkenstock sandals are copyright protected.

In proceedings between Birkenstock and retail chain Scapino, Birkenstock claimed copyright protection for its 'Madrid', 'Arizona', 'Florida', 'Boston' and 'Gizeh' models. It was mostly successful.

According to the District Court Midden Nederland, the 'Madrid', 'Arizona' and 'Florida' sandals are indeed eligible for copyright protection.

Scapino infringes the copyright on these models with its sandals from its own brands 'Bioslippers', 'Bio Life', 'Hush Puppies' and 'Thuis'.

Birkenstock cannot claim copyright protection of the ‘Boston’ and ‘Gizeh’ models. The ‘Boston’ sandal does not meet the work test, according to the Dutch Court.

The ‘Gizeh’ is no longer protected due to Benelux regulations (that have since been repealed) under which – in short – copyrights expire after the expiry of the relevant design right. Birkenstock’s appeal to the doctrine of slavish imitation also fails due to the lack of the required 'own identity on the market'.

An injunction against Scapino was granted, effective four weeks after the judgment is served, under threat of a penalty of up to €100,000. Furthermore, information about quantities must be provided and the damage must be determined in separate proceedings.

Finally, Scapino must pay remuneration for Birkenstock’s legal costs of just over €50,000.

Criteria for copyright protection of works of applied art

The Dutch court did not wait for the judgment of the European Court of Justice in Joined Cases Mio (C-580/23) and USM Haller (C-795/23). Referring to previous national case law and that of the CJEU, the court arrived at the following criteria for assessing whether works are protected by copyright (machine translation, footnotes removed):

3.13. The first question to be answered is whether the sandals pass the so-called work test and are works protected by copyright. According to the CJEU, only works that are original in the sense that they are the author's 'own intellectual creation' (OIC) are eligible for protection. That protection extends only to those elements that are actually the expression of such a creation. A work is original if it reflects the personality of the author and is the result of the author's free and creative choices.

3.14. Utility items may also be eligible for copyright protection if they are the creator's own intellectual creation and deserve such protection. This is the case, for example, if the creator of a product has expressed his creative ability in an original way by making free and creative choices and has designed the product in such a way that it reflects his personality. The fact that the design of a product is (partly) determined by technical or functional considerations does not necessarily preclude protection, as long as it does not prevent the creator from making free and creative choices and these choices reflect the creator's personality. Parts of an object that are characterised or determined solely by their technical function do not meet the originality criterion, because the various ways of implementing an idea are so limited that the idea coincides with its expression and it is then impossible for the creator to give expression to his creative spirit and achieve a result that constitutes his own intellectual creation. Finally, a collection or selection of elements that are not protected in themselves can, in combination, constitute an original work, provided that the collection or selection reflects the personality of the creator.

3.15. In the case of adaptations, if the copyright in an original work and in an adaptation thereof are held by the same person, the copyright holder may invoke both copyrights against an infringer. There is therefore no 'deduction' of one's own previous design.

Application of the test

The Court analyses Birkenstock's sandals and rules that three models are protected by copyright:

3.20. In the opinion of the court, the original character and creative choices of the designer of the Birkenstock sandals lie primarily in the combination of the following design elements:

1. The flat underside and a sole outline (also known as 'Umriss') with straight tapered side lines towards the front of the sandal;
2. The unlined side of the sandal, which leaves the cork visible;
3. The shape of the footbed with a recess at the heel, a raised area in the middle on the inside and a toe grip, which consists of a moulded edge at toe level in a kind of inverted square stitch;
4. The walls (upstanding edges) around the footbed, which slope downwards from back to front;
5. The (fastening) strap that runs along both sides of the sandal to the plastic sole and disappears between the footbed and the sole;
6. Insofar as the upper consists of multiple straps (Arizona/Florida), these straps (two or three) are cut from a single piece of leather, causing the straps to meet at the side and form a whole before the strap disappears between the footbed and the sole;
7. The fastening straps are not finished with visible stitching or other decorative elements.

​A more detailed discussion of the relevant elements can be found in paragraphs 3.21 to 3.27 of the judgment (machine translation available here).

Judgment of the Bundesgerichtshof in the Birkenstock case

The Dutch court reached a different conclusion to the German Federal Court of Justice, which issued a judgment on 20 February 2025 (Federal Court of Justice 20 February 2025, ECLI:DE:BGH:2025:200225UIZR16.24.0). The Federal Court of Justice ruled that two Birkenstock models (the ‘Madrid’ and ‘Arizona’) are not eligible for copyright protection.

The Dutch court paid little attention to this; it suffices to note that it has reached a different conclusion in this case.

What next?

Both Birkenstock or Scapino may appeal. This could be an interesting case, because in the meantime the CJEU will have ruled in the Joined Cases Mio (C-580/23) and USM Haller (C-795/23). The MARQUES Copyright Team will discuss the upcoming CJEU's judgment in this blog.

Evert van Gelderen is a partner at Clairfort Attorneys, the Netherlands, and a member of the MARQUES Copyright Team. Please contact him directly for further information. The illustrations are taken from the judgment published by the Court.

EUIPO has announced that applications are open for the 10^th edition of the DesignEuropa Awards, which will take place in Ljubljana, Slovenia in September 2026.

The application period runs from 10^th November 2025 to 20^th February 2026. There are four categories:

• Entrepreneurs and Small Companies Award
• Industry Award
• Next-Generation Design Award
• Lifetime Achievement Award

Anyone can nominate a designer for one of the awards. The rules of the Awards are available on EUIPO’s website here.

Full information, including eligibility, dates and links to make nominations, is available here.

Read about the 2025 winners of the DesignEuropa Awards on the Class 99 blog here.

Registration is open for the first MARQUES Design Symposium, which will take place in Frankfurt, Germany on 29th and 30th January 2026.

You can view the programme on the MARQUES website here and register here.

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.

Registration for the MARQUES Design Symposium includes lunch on both days, and an evening reception and dinner on 29th January.

Registration cost €750 (MARQUES members) or €890 (non-members). Accommodation at the Frankfurt Spin Tower Hotel can be booked as part of your registration at the special rate of €133 per night.

The Design Symposium will take place at the NH Collection Frankfurt Spin Tower (photo from the hotel website).

For more information, visit the dedicated page on the MARQUES website.

The winners of the DesignEuropa Awards 2025 were unveiled at a ceremony in Copenhagen on 23 September.

The winners were:

•             Entrepreneurs and Small Companies Award: Overade for its LIFE bike helmet. The French-designed helmet includes built-in lights and wireless features to improve safety and visibility for urban cyclists.

•             Industry Award: Ciarko Design, Poland’s largest manufacturer of premium kitchen hoods, for its Mono kitchen extractor hood. In awarding the prize, the jury considered the product’s combination of design, technology and environmental consciousness.

•             Next Generation Design Award: David Borovic, a young designer from Romania, whose projects include SYNTHESIS, a hybrid-electric bicycle demonstrating a focus on eco-friendly materials, ergonomics and functional design.

•             Lifetime Achievement Award: Dutch designer Hella Jongerius was recognised  for her contributions to textiles, furniture, and industrial design. Over her 30-year career, she advanced the use of material and colour, and her human-centred approach has influenced the industry’s understanding of design and environmental issues.

This was the sixth edition of the DesignEuropa Awards, which honour outstanding designs that are protected as registered EU designs and celebrate influential figures in the industry.

The winners were chosen by the DesignEuropa Awards jury from a diverse pool of finalists. More information is available on EUIPO’s website here.

MARQUES Treasurer Uwe Over (pictured with EUIPO Executive Director João Negrão) attended the ceremony. He said: “The EUIPO DesignEuropa Awards ceremony held at an iconic design place in Copenhagen showed again the commercial importance and IP relevance of creativity resulting into tangible designs to the benefit of society. It was impressive to see extraordinary design examples supported by the strong willingness to respect such effort by granting efficient protection by all legal means. It was also encouraging to see all stakeholders acting hand in hand; a very strong initiative driven by the Executive Director of the EUIPO.”

Photos provided by EUIPO