In brief
- The Court of Justice of the European Union (CJEU) has provided important clarification on copyright protection for works of applied art in the EU in the joined cases of Mio and Konektra.
- The judgment provides a useful summary of EU copyright law and the assessment of the 'originality' requirement but does introduce new, potentially significant, elements to the framework, including a 'recognisability' requirement for infringement.
- The decision is also a reminder of the divergences in the UK and EU approaches to copyright following Brexit, particularly for works of applied art (or artistic craftsmanship). This comes at a time when the UK Government considers potential changes to the UK design protection framework (following last year's revamp of the EU design rights framework).
On 4 December 2025, the CJEU delivered its judgment in the joined cases of Mio (C580/23) and Konektra (C795/23). Both cases concern availability, and enforcement, of copyright protection in works of applied art, in each case relating to furniture (the Mio case in Sweden concerns a table design, and the Konektra case in Germany concerns modular furniture).
The relevant furniture designers alleged copyright infringement against third-party manufacturers who had produced similar furniture. The Swedish and German courts separately referred a number of questions to the CJEU relating to (a) whether copyright subsisted in the claimants' furniture and (b) whether the defendants' reproductions infringed that copyright. Their questions traversed the following issues:
- The treatment of works of applied art under copyright (and the relationship with design protection);
- Assessment of 'originality', including the relevant criteria; and
- Assessment of copyright infringement, particularly regarding the scope of protection and the notion of reproduction.
The judgment has been much anticipated. Whilst there has been a 16-year line of CJEU case law since its decision in Infopaq giving guidance on copyright protection and enforcement (including Pelham, Cofemel and Brompton), areas of uncertainty have remained, which has contributed to divergent results between the courts of EU member states. For example, whilst a German court refused copyright protection to the design of a Birkenstock sandal, a Dutch court has recently granted copyright protection to the same design.
In relation to originality, the judgment largely affirms these previous CJEU statements – particularly Cofemel – without seemingly significantly shifting the current position, though there are further points of clarification, including a new potential requirement that a work of applied art has a 'unique' appearance to qualify as a 'work' that can be protected by copyright. As for infringement, the judgment introduces an additional element into the relevant assessment, namely a requirement of 'recognisability' of an earlier work's creative elements in an allegedly infringing reproduction.
Copyright protection: 'originality' is the only requirement
The first issue the CJEU addressed was whether there was a 'rule and exception' relationship between design and copyright protection requiring a stricter originality requirement for works of applied art, in light of its finding in Cofemel that concurrent copyright and design protection should be limited to certain situations.
The CJEU confirmed that there was no such 'rule-exception' relationship; higher requirements do not therefore apply when assessing originality of works of applied art compared to other types of work. A design will be considered a 'work' protected by copyright if it satisfies the two conditions of: (1) being original subject matter in the sense that it represents the author's own intellectual creation, and (2) having elements which express such an intellectual creation. Where the creation of the object is determined by technical considerations or other constraints that leave no room for creative freedom, however, it will not be protected by copyright.
The CJEU reiterated that copyright and design protection have different requirements, each serving particular objectives and policy requirements. For example, copyright protection lasts for the author's life plus 70 years, while design protection lasts a maximum of 25 years (if renewed every five years during that period). The court confirmed the two rights are separate and should not be confused when assessing protection, for example design criteria of novelty and individual character should not influence assessments of originality for copyright protection.
Assessing originality of objects of applied art
The referring courts asked the CJEU to provide further guidance on the factors that should be taken into account as part of the originality assessment. While the referring courts may have been hoping for more clarity, or even some hard-and-fast rules, the judgment essentially reaffirms the CJEU approach in previous cases (as discussed above). That said, the CJEU does make some interesting statements worth noting, including that:
- The creative process and the author's intentions can be considered when assessing originality – provided they are expressed/visible in the work – but these factors are not decisive.
- An author's choices are not "free and creative" if they are dictated by technical or other constraints. Further, free choices which do not "bear the imprint" of the author’s personality by giving subject matter a "unique" appearance cannot said to be "creative". It remains to be seen how this reference to a "unique" appearance may be interpreted in the originality assessment, potentially leaving room for further ambiguity in interpretation between the courts in different member states.
- The use of existing forms by the creator does not in itself preclude originality, if the creator has expressed their creative choices in the arrangement of those forms. Where the creator is inspired by existing objects, copyright protection will be limited to an identification of the creator's own creative elements.
- Similar or identical subject matter created by a different author could indicate a "low degree, or even lack, of originality".
- The fact that an object has, for example, been displayed in exhibitions or museums, or is otherwise recognised in professional circles, can be taken into account, but is not necessary nor decisive in assessing its originality.
Much will, therefore, depend on the particular facts and circumstances when making the originality assessment, and so it seems likely that we will continue to see conflicting decisions from EU national courts as to what might be protected by copyright.
Enforcing copyright and the scope of protection
On infringement, the referring courts asked the CJEU to clarify whether it is necessary to determine whether the creative elements of a work have been reproduced in a recognisable manner, or whether the same overall impression would suffice (and, further, whether the degree of originality of a work and existence of similar creations should be considered when making this assessment).
After confirming that the first step is to establish whether there has been unauthorised use of a work by the alleged infringer, the CJEU stated that the examination is whether the creative elements (i.e. the expression of the author's free choices) have been "reproduced in a recognisable manner". The 'different overall impression' criterion was one of design law and not copyright and should not be applied. By including this requirement of 'recognisability', however, the CJEU appears to be adding an additional step to the infringement analysis, but once again with no clarification as to how such 'recognisability' should be assessed and by reference to whom.
The CJEU also held that the extent of copyright protection does not depend on how original a work is (i.e. on the degree of creative freedom exercised by the author), so works of 'lesser' originality should receive equal protection under EU copyright law. This differs from the position under trade mark and design law, where the degree of non-distinctiveness of a trade mark or design freedom impacts the infringement threshold, and also differs from the approach in the UK on copyright (in Lidl v Tesco, the Court of Appeal was prepared to find sufficient originality in a basic logo to afford copyright protection, but this led to a narrow scope of protection on infringement). There is a concern that the CJEU's approach may lead to works of fairly limited creativity attracting a broad scope of protection, potentially where not merited (subject, of course, to how strict the originality assessment is interpreted and applied in the first place).
The CJEU also held that where works are inspired by a common source, only the 'new' creative elements are original to the derivative work, and so only reproduction of these new elements constitutes possible copyright infringement. This addressed arguments raised in the case that the claimants' furniture designs were not entirely original but part of a wider market trend.
The UK position
In the UK, whilst case law has established that the EU approach set out in Cofemel should apply in relation to the assessment of 'originality' generally, it has proven challenging for the courts to reconcile UK and EU law in the context of 'works of artistic craftsmanship'. Such works fall within the closed list of works protectable under UK copyright legislation and must fulfil requirements of both 'artistic' quality and 'craftmanship'. The recent case of WaterRower (which we discussed in our article here) highlighted the challenges in reconciling this tension, with the Intellectual Property Enterprise Court establishing a two-stage test for works of artistic craftsmanship – (1) first an assessment of originality under the EU standard of Cofemel and then (2) a consideration of artistic craftsmanship by reference to the multi-factorial approach in the House of Lords' decision in Hensher v Restawile (namely, something more than producing an object with aesthetic appeal).
Consideration of these complex issues comes as the UK Government considers potential changes to the UK design protection framework (following last year's revamp of the EU design rights framework). In particular, the UK Intellectual Property Office's designs consultation (which closed at the end of November 2025) addresses options for simplifying the UK's unregistered design rights framework, and also considers the challenges presented by the overlap between copyright and designs. However, in the context of the latter, the UKIPO proposes making no change to copyright law, in light of the WaterRower decision, noting that the effect of that decision is that copyright is only available to protect design products with a certain artistic character, ensuring that copyright is not, therefore, overly protective.
Final thoughts
Overall, the CJEU's judgment offers a useful summary of EU copyright law and concepts stemming from its seminal decision in Infopaq, but also seems to open up new fronts of potential ambiguity through references to 'unique' appearance and 'recognisability', without much guidance on how these concepts should be interpreted and assessed by member states' courts. As for the divergence between the UK and EU's approach to key aspects of copyright protection, in particular, for works of applied art, it will be interesting to see how this is dealt with in the UKIPO's response to the designs consultation in due course.
If you would like more information on how to maximise opportunities for protecting works of applied art, and other products, in both the UK and EU, please get in touch with our Copyright and Designs team.