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.