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.