A recent ruling by the Court of Justice of the European Union has clarified the design concepts of creation and individual character. Ericka Winogradsky explains the background to the case and its implications for EU design holders.
On 18 December 2025, the Court of Justice of the European Union (CJEU) issued its preliminary ruling in the case of Deity Shoes, S.L. v Mundorama Confort, S.L. and Stay Design, S.L., recalling in a particularly clear manner the conditions for the protection of Community (EU) designs under Regulation (EC) No 6/2002. It confirmed that protection is not subject to a ‘minimum degree of creation’ and specified the influence that must be given to fashion trends in the assessment of individual character.
The Context of the Dispute: The Customisation of Pre-Existing Designs
Deity Shoes is the owner of shoe designs, particularly the customisation of basic models from the catalogues of Chinese trading companies. This customisation consisted of modifying components (colours, materials, buckles, laces) from a list of options predetermined by the suppliers themselves.
In the context of an infringement action brought against Mundorama Confort and Stay Design, the co-defendants brought a counterclaim for a declaration of invalidity, arguing that Deity Shoes' designs, resulting from a mere combination of pre-existing elements without any real innovation, could not satisfy the requirements of novelty and individual character laid down in Articles 5 and 6 of the EC Regulation. The referring court, therefore, posed the question of whether such a process could give rise to a protectable right and, more broadly, the role of fashion trends in assessing the designer's freedom and individual character.
Conditions of protection: Novelty and individual character, excluding a threshold of creativity
Answering the first and third referred questions, the Court set out a clear solution: the benefit of the protection conferred by Regulation No 6/2002 is subject exclusively to the demonstration of the novelty and individual character of the design (paragraphs 31 and 33).
The Court firmly rejected the idea that an additional condition, relating to a 'minimum degree of creation’ or a ‘special intellectual effort’, would be required. In so doing, it makes a clear distinction between design law and copyright. While the latter protects original 'works' which reflect the personality of their author, the design regime is intended to protect 'new and individualised subject-matter' of a utilitarian nature and intended for mass production (paragraph 29).
The assessment of novelty and individual character is based on an objective comparison between the design claimed and the heritage of earlier designs or the analysis of the subjective creative process. The concept of 'creator', referred to in Article 14 of the Regulation, is relevant only for the purpose of determining the ownership of the right and does not establish any additional conditions for protection (paragraph 32).
Individual character: the role of personalisation and fashion trends
Examining the second and fourth questions, the Court then ruled on two crucial points for the creative industries.
1. The customisation of existing designs: The fact that a design is the result of the customisation of a basic design, including the occasional modification of components offered by a supplier, is not, in itself, an obstacle to the recognition of its individual character (paragraph 39).
The decisive element remains the overall impression produced on the informed user. A design, even if it is composed of known elements, may be protectable if its combination produces an overall impression which differs from that produced by any earlier design taken individually (paragraph 38).
2. The influence of fashion trends: fashion trends are not capable of limiting the designer's degree of freedom in the same way as technical or regulatory constraints (paragraph 45). Unlike fashion trends, which can be inevitable and permanent, fashion trends are inherently evolving and non-binding. The creator retains the freedom to follow them, to ignore them or to free themselves from them (paragraph 43). Consequently, the existence of a trend cannot justify a minor difference being sufficient to confer individual character.
In addition, the Court stated that the features of a design which result from such trends are not of any less importance in the overall impression produced on the informed user (paragraph 52). The ‘informed user’ is defined as a person with particular vigilance and extensive knowledge of the sector, which specifically includes the prevailing trends (paragraphs 47-48). On the contrary, their knowledge of trends makes them more attentive to details and not less. The assessment of individual character must therefore be based on an overall comparison, irrespective of any aesthetic or commercial considerations or the popularity of certain elements (paragraph 51).
Scope of the ruling
This ruling has the merit of clarity. On the one hand, it secures business models based on personalisation and the combination of elements, which are common in fashion, by confirming that these practices can lead to protectable creations. On the other hand, it maintains a high level of requirement for obtaining protection by refusing to consider trends as a constraint that would lower the threshold of individual character. The Court thus reaffirms an objective and rigorous approach, focused on the final product and its perception by an informed user, and not on the intensity of the creative process or the aesthetic trends of the moment.
To find out more about EU design protection, including how to protect and enforce design rights in the fashion sector, speak to your Novagraaf attorney or contact us today.
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