On 8 May 2025, Advocate General (AG) Szpunar delivered the highly anticipated Opinion in the Joined Cases Mio (C-580/23) and USM Haller (C-795/23). These cases address the complex and often controversial issue of copyright protection for works of applied art.

The Opinion also contributes to the ongoing debate over whether concepts such as “artistic merit” and “aesthetic value” should influence copyright protection for such works.

This blog summarises the key takeaways from AG Szpunar’s opinion and discusses some initial reactions from IP professionals from different EU member states.

Background of the Mio and USM Haller cases

Mio case (Sweden)

Galleri Mikael & Thomas Asplund Aktiebolag (Asplund) designs and manufactures furniture, including the ‘Palais Royal’ table series. Mio AB, Mio e-handel AB and Mio Försäljning AB (‘Mio’) sell furniture, including the ‘Cord’ table series.

Asplund initiated legal proceedings against Mio, claiming that the ‘Cord’ table infringes its copyright in the ‘Palais Royal’ design. The core legal issue is whether the ‘Palais Royal’ design meets the originality threshold required for copyright protection.

USM Haller Case (Germany)

USM U. Schärer Söhne AG (USM), a Swiss company, produces the modular ‘USM Haller’ furniture system. This system features round shiny chrome tubes connected by balls, forming structures with coloured metal panels.

USM claims that the German company Konektra GmbH infringes its copyright by marketing an identical modular system after initially offering only compatible components.

Three key issues addressed by the AG

The AG’s Opinion focuses on three central issues regarding the concept of a work:

1. The relationship between copyright protection and design law protection;
2. The criteria for assessing the originality of a work; and
3. The criteria for assessing copyright infringement.

Before addressing these issues, the AG recalls that EU copyright law protects works of applied art without imposing additional requirements. This principle was previously clarified by the CJEU in Cofemel (Case C-683/17) and Brompton Bicycle (Case C-833/18).

1 Relationship between copyright protection and design law protection

The referring German court in the UMG Haller case questioned whether stricter requirements should apply to works of applied art than to other works.

According to the AG, the answer is a clear “No”. There is no legal basis for imposing higher originality standards on works of applied art. Paragraph 52 of the Cofemel judgment does not support such an approach.

2 Criteria for assessing originality of a work

General assessment

The AG reaffirms that originality requires the expression of free and creative choices that reflect the author’s personality. This principle applies equally to works of applied art.

Unlike other categories of works, for which the decision to create alone is already a creative choice in itself, there is no presumption of originality for works of applied art; each case requires a factual analysis.

Artistic quality and aesthetic value

The AG explicitly states that copyright protection is not conditional for a work’s artistic quality or aesthetic value. While ‘aesthetic’ can refer to choices unrelated to technical or functional constraints, not every aesthetic choice reflects the author’s personality. Therefore the AG concludes that it is prudent to rely on the words "free and creative choices reflecting the personality of the author":

"The term ‘artistic’ evokes a value judgment in the sense of a relatively high degree of artistic success. However, such judgments are not relevant in copyright law"  (AG Szpunar Opinion, paragraph 43)

Author’s intentions

The author’s intentions during the creative process are not decisive. What matters is whether the free and creative choices are perceptible in the work itself.

Other factors

The CJEU has already ruled in the Brompton Bicycle case that a court may bear in mind all the relevant aspects of the dispute when assessing originality. The AG discusses the following factors:

• Earlier patents: Relevant only if they clarify why a particular design choice was made.
• Use of common shapes: Does not preclude originality; originality may lie in how the shapes are combined.
• Inspiration from earlier works: If the same author creates a variant of an earlier work, it can be fully protected, according to the AG. He reasons that the creative elements reproduced in the new work remain therein and constitute the imprint of the personality of the same author. If a different author is involved however, the new work must have its own creative elements.
• Novelty: Copyright does not require novelty, but independent creation of similar works may suggest a lack of originality.
• Exhibitions and recognition: Display in a museum or exhibition or recognition by professional circles is neither necessary nor sufficient to prove originality but may serve as an indication.

3 Criteria for assessing infringement

The AG clarifies that infringement occurs when creative elements of a work – those elements that are the expression of choices reflecting the author’s personality – are recognisably reproduced in the allegedly infringing product.

As opposed to design law, overall impression is not decisive according to the AG.

Other factors

The AG evaluates whether the following factors should be taken into account when assessing copyright infringement:

• Degree of originality: In copyright law, unlike in design law, protection does not vary on the basis of the degree of originality. Originality does not depend on the difference between the protected work and other subject matter, but is inherent to the work and results from the author’s personal imprint.
• Common source and artistic trends: Following the same trend or being inspired by earlier subject matter does not constitute infringement unless specific creative elements are copied. Where two works are inspired by the same prior subject matter or design, only the ‘new’ creative elements are original to the derivative work and only the reproduction of those new elements constitutes an infringement of that work.

Reactions from IP experts

The opinion of AG Szpunar has already triggered some comments by IP scholars and other professionals throughout Europe. Some of these initial comments to the AG's opinion, or earlier comments about the issues discussed therein, from the Netherlands, Germany and Italy, are mentioned below.

Netherlands: In the Netherlands IP Professor Tobias Cohen Jehoram (Rotterdam University) welcomed the AG’s opinion as a clear rejection of the German approach seen in the Birkenstock case: “The dated German approach goes out the window.” He emphasised that ‘artistic merit’ is irrelevant to copyright protection for industrial designs. Léon Dijkman, Assistant Professor (University of Amsterdam), noted that the AG rightly rejects applying stricter originality standards to applied art. He pointed out that the CJEU’s Cofemel decision already confirmed this approach.

Germany: German IP litigator Richard Dissmann offers a contrasting interpretation, arguing that the AG’s opinion does not reject the Birkenstock decision of the Bundesgerichtshof (BGH). According to Mr Dissmann, the AG says exactly the same thing as the BGH, with the only qualification that he recommends avoiding the term ‘artistic’. He notes that the BGH didn’t use the term ‘artistic’: “it used ‘künstlerisch’, which carries a slightly different meaning.” IP attorney Eva Maierski also refers to the AG’s considerations regarding the terms ‘artistic’ and ‘aesthetic’ and concludes that: “This seems to be a clear hint for the BGH after their Birkenstock decision.”

Italy: In Italy, copyright protection for industrial designs is subject to a dual requirement: originality and artistic value [valore artistico], as set out in Article 2(10) of the Italian Copyright Act (Law No. 633/1941). Italian courts and scholars interpret the requirement of artistic value as a qualitative threshold, meaning that a design must be recognised as a true work of art, rather than merely being aesthetically pleasing or commercially successful.

This restrictive approach is reflected in key case law. In its Decision No 5089/2018, the Italian Supreme Court of Cassation ruled that establishing artistic value requires objective indicators, such as recognition by art critics or exhibition in museums.

Similarly, in Decision No 2061/2014, the Supreme Court held that the design must evoke a “qualified aesthetic perception”.

This approach was also applied by the Milan Court in the Tripp Trapp case (27 September 2016), where the court denied copyright protection to the iconic high chair. Although the chair was considered original, the court found that it lacked the necessary artistic value to qualify for copyright protection.

Leading Italian scholars support this two-pronged test. Professor Cesare Galli argues that requiring both originality and artistic value helps to balance copyright and industrial design rights and prevents over-protection.

Likewise, Vanzetti and Di Cataldo, in their Manuale di diritto industriale, view the artistic value requirement as a filter that preserves the exceptional nature of copyright protection for designs. Marzorati further emphasises that this requirement acts as a “gatekeeper,” avoiding excessive monopolisation in design markets.

Closing remarks

The upcoming CJEU ruling will be crucial in clarifying the issues discussed above and may either confirm or redefine the legal framework for industrial design protection across the EU. For now, all eyes remain on Luxembourg.

The full opinion of AG Szpunar (ECLI:EU:C:2025:330) can be read here.

This post was written by Evert van Gelderen (Clairfort, the Netherlands), with thanks to Mauro Delluniversità (SIB, Italy) for providing his comments with respect to Italy. Evert and Mauro are both members of the MARQUES Copyright Team. Pictures are taken from the AG Opinion