Applied art and copyright protection in the EU

Should ‘applied art’, such as furniture or modular design systems, be subject to a stricter test of originality in copyright law than other works, such as paintings or novels? This fundamental question was considered recently in the EU in the joined cases C-580/23 (Mio) and C-795/23 (konektra/USM), as Bart van Blokland explains.   

Different EU member states hold differing opinions on the copyright protection of applied art. For example, the well-known Birkenstock sandals were not recognised as a copyright-protected work in Germany, whereas the Ganni Buckle Ballerina shoe was in Denmark.  

Case law does not show a clear picture in the Netherlands either. For example, bicycle bags were considered copyright-protected works, while cheese slicers were not. This inconsistency in the application of EU copyright law can lead to legal uncertainty for designers and companies operating in multiple markets within the EU.   

The Opinion delivered by Advocate General (AG) Szpunar in the joined cases C-580/23 (Mio) and C-795/23 (konektra/USM) recently shed some light on this important topic.  

Applied art and EU copyright protection: Why the ruling matters 

The outcome of this debate on copyright protection in the EU is critically important for the creative industries. If objects of applied art are to meet stricter requirements than works outside that category, designers run the risk that their work will not enjoy copyright protection, while comparable works from other disciplines do. This has direct consequences for their ability to take action against counterfeiting and protect their creative investments, given the difference in the terms of protection between copyright and design rights.    

The copyright protection term is considerably longer, up to 70 years after the creator's death, compared to design rights, which have a maximum term of 25 years. A clear, uniform assessment framework for copyright protection within the EU is crucial, therefore.   

Furnishing the dispute: The Mio case 

The Mio case concerns a dispute between Swedish design brand Asplund and furniture retailer Mio. Asplund is the designer of the 'Palais Royal' table. It claims that Mio infringes its copyright with its 'Cord' table. In 2021, Asplund filed a lawsuit with the Swedish Patent and Trademark Court (Patent- och marknadsöverdomstolen) and won its case, the court ruling that the Palais Royal table is protected by copyright. However, Mio argued that there was no infringement since the table was not original enough to be protected by copyright. According to Mio, the Cord table was also developed independently.  

• Can you spot the difference? 

After losing the verdict, Mio appealed, at which point the Swedish Court of Appeal (Svea hovrätt, Patent- och marknadsöverdomstolen) referred preliminary questions to the Court of Justice of the EU (CJEU).  

In particular, these questions centre around how originality should be assessed in applied art, such as furniture, and how to determine whether there is infringement: should it be a matter of recognition of the original work, or of the general impression it evokes?   

A parallel furniture dispute: USM  

In parallel to this case, Swiss manufacturer USM Schärer Söhne AG sued the German company konektra GmbH for selling furniture that it believes infringes its modular furniture programme 'USM Haller' (konektra started by selling spare parts but eventually switched to offering complete, virtually identical furniture). 

At first instance, the German court ruled in USM's favour but the Court of Appeal (Oberlandesgericht Düsseldorf) rejected the copyright basis and only granted the claim based on competition law. Both parties appealed to the Bundesgerichtshof, which also referred questions to the CJEU. The central questions here concern the relationship between design law and copyright in applied art, the degree of creativity required, and/or whether factors such as recognition or professional appreciation may be relevant in assessing originality.   

Both cases were joined by the Court for a joint hearing on 13 May 2024, with the AG Opinion published on 8 May 2025. A judgment of the Court of Justice is expected this autumn and will likely have important implications for the protection of industrial designs in the EU. 

One originality test, no exceptional regime for applied arts   

• Stricter originality test? No!   

In his Opinion, AG Szpunar makes short work of the idea that stricter requirements should apply to applied art than to other creative works. In line with the judgment of the Court of Justice in Cofemel, the AG states that the only criterion for copyright protection is whether the work is original, or the result of free and creative choices by the creator.  

The fact that a design is functional or industrial in nature does not affect this. According to Szpunar, terms such as 'artistic' or 'aesthetic' are misleading in this context, because they can wrongly give the impression that a work must have a certain artistic value to be protected. However, this value judgment plays no role in copyright law.   

• Concurrence between copyright and design law   

Another important point in this context is the relationship with EU design law, which protects the appearance of a product, provided that it is new and has its character.  

In his opinion, the AG emphasises that both forms of protection can exist side by side and that 'double' protection is possible. In his view, this cumulation is no reason to impose stricter requirements on copyright protection for applied art. The conditions for protection must remain clearly separated: originality for copyright, novelty and own character for design law.   

• Guidelines for assessing infringement   

Under EU copyright law, infringement involves the unauthorised use of any protected creative elements. This can be a small part of the work, as long as that part is original and reflects the personal creative choices of the creator. The AG states that when assessing infringement, it must be examined whether those creative elements have been recognisably incorporated into the contested design (Pelham). The AG emphasises that an approach in which the general visual impression is compared (as in design law) may not be applied to copyright law. In that context, it is not the general impression that counts, but whether the personal, creative choices of the creator have been reproduced.    

Other factors, such as the 'degree of originality', are also not relevant to the scope of protection, according to the AG. A work is either original and therefore protected, or not: there is no scale on which more original works automatically enjoy broader protection. This again distinguishes copyright from design law, where the scope of protection can vary depending on the degree of individuality.  

Furthermore, the AG states that if two works originate from the same source of inspiration, this does not in itself constitute infringement. Only if the specific creative choices from the original work have been adopted is there infringement. And, even if a new design has been created independently, i.e. without knowledge of the original work, there can still be infringement if creative elements have been reproduced. Conversely, the mere fact that similarity is possible by chance does not negate copyright protection.    

In short, the AG proposes that the CJEU should rule that in the case of copyright infringement, the court must assess whether creative elements of the original work can be recognised in the allegedly infringing design. The overall impression of the work is not sufficient for this and nor may the importance of the work or the degree of originality be taken into account in the extent of the protection. Only the recognisable adoption of creative, protected choices is relevant. This test seems to correspond to the reasoning of the Dutch Supreme Court in the Stokke judgments. The question is whether the ruling in this case will change the amount of protection that applied art enjoys.  

A question of recognition    

Critics of the opinion note that the recognisability test proposed by Szpunar is not sufficiently clear. It is unclear from whose perspective it should be assessed whether something is 'recognisable', is it the average consumer, an expert or even an automated system? There are fears that this approach undermines the legal certainty and predictability of copyright protection in the EU.  

Nevertheless, Szpunar's Opinion provides important clarity. There should be one uniform originality test for all works, including applied arts. Copyright should not be subject to additional requirements because of the functional nature of the design. His opinion is thus a clear call to the CJEU to confirm a consistent and workable standard for copyright protection in the EU.    

Interested in knowing more about protecting your applied art in the EU? Talk to your Novagraaf attorney or contact us via the website to find out more about copyright protection in the EU. 

Bart van Blokland works in the Knowledge Management department at Novagraaf Amsterdam.