The aim of these articles is to keep our Clients and Associates updated about developments in the sector of Intellectual Property in general and our firm in particular. In this way, we wish to provide a broader view of the tools that the field of trade marks, domain names, patents, designs and related rights offers to entrepreneurs to enhance and protect their efforts in researching and developing new solutions and ideas.
Mio/Konektra (Cjeu, 4 December 2025): Copyright protection for applied art
On 4 December 2025, the Court of Justice of the European Union (CJEU) delivered its judgment in the joined cases C-580/23 (Mio) and C-795/23 (Konektra), clarifying key principles governing the copyright protection of works of applied art, including functional and industrial design products.
The cases originated from disputes in Sweden and Germany involving furniture manufacturers alleging copyright infringement through the sale of virtually identical products. The CJEU's ruling, following Advocate General Szpunar's May 2025 opinion, establishes an EU unified framework for determining when industrial designs qualify for copyright protection and when such protection is infringed.
The long-awaited judgment of the Court of Justice of the European Union in Mio/Konektra brings welcome clarity to the following three core questions:
(1) the copyright treatment of works of applied art;
(2) how copyright subsistence must be proven; and
(3) how copyright infringement should be assessed.
- Applied Art and Copyright: Originality as the Sole Threshold
The first and arguably most consequential issue concerned the requirements for copyright protection of works of applied art. The Court confirmed unequivocally that works of applied art must be treated no differently from any other category of works.
Originality is the only requirement for copyright protection, and no additional qualitative or aesthetic thresholds may be imposed.
This clarification has immediate structural consequences.
Member States whose copyright laws still contain heightened requirements for applied art might need to amend their legislation. A typical example is Italy, whose statutory requirement of “artistic value” now sits squarely at odds with EU law.
While this aspect of the judgment may appear largely formal, it represents a decisive step toward eliminating long-standing national divergences and ensuring a truly uniform standard across the internal market.
- Proving Copyright Subsistence: What Originality Really Means
The Court then turned to the more complex question of how originality is to be established in practice.
Responding to a list of potential factors identified by the referring court—such as the author’s intentions, the existence of alternative designs, derivation, or post-creation circumstances—the CJEU declined to endorse any rigid checklist. Instead, it held that the relevance of such elements depends entirely on the circumstances of each case.
The guiding principle is clear: any evidence capable of demonstrating that the work is the result of free and creative choices reflecting the author’s personality may be taken into account.
At the same time, the Court reiterated an important boundary. Originality is not synonymous with aesthetic appeal. The fact that a design produces a visually striking or artistically significant effect, beyond its functional purpose, is not in itself sufficient to qualify it as a protected work.
Crucially, the Court also emphasised the claimant’s burden of proof. Copyright protection cannot be assumed. A party alleging infringement must first demonstrate why the work qualifies as protected subject matter: the creative nature of the author’s choices cannot be presumed.
Finally, the Court dismissed the autonomous relevance of the author’s intentions. Intentions remain in the realm of ideas and are only relevant insofar as they are expressed in the work itself. What ultimately matters is whether the finished work reflects the author’s personality through free and creative choices, not what the author set out to achieve.
- Proving Infringement: Recognisability as a Safeguard
The judgment concludes with guidance on infringement.
While reaffirming the originality-based test, the Court introduced an important safeguard: the original elements that have allegedly been copied must be recognisable in the infringing work. In other words, infringement cannot be established merely by abstract similarities; it requires that the author’s original creative choices are perceptible in the contested design.
This recognisability requirement serves as a practical counterbalance, ensuring that copyright protection does not extend beyond its legitimate scope and preserving room for independent creation.
Key Legal Developments from the Judgment
- Free choices are necessary, but not sufficient
The CJEU reaffirmed that a work of applied art may qualify for copyright protection if it reflects the author’s free and creative choices, meaning choices that are not dictated solely by technical, functional or regulatory constraints.
However, the Court expressly clarified that:
- the mere existence of free (non-technical) choices is not enough.
To qualify as a protected work, those choices must also be creative - i.e. they must reflect the author’s personal intellectual contribution.
- Uncertainty around “creativity”
Crucially, the Court did not provide concrete guidance on:
- what exactly constitutes “creativity” in applied art, or
- how national courts should assess it in practice.
This lack of operational criteria leaves substantial room for interpretation at national level and increases legal uncertainty in enforcement and litigation.
Practical Consequences for IP Strategy
- Documentation becomes critical
Given the absence of a clear creativity test, the judgment strongly underscores the importance of:
- documenting the creative decision-making process,
- preserving sketches, prototypes, mood boards and design alternatives,
- evidencing why certain aesthetic choices were made and which alternatives were available.
For rights holders intending to rely on copyright protection for applied art, evidence of creativity may be decisive.
Infringement: A Shift Away from “Overall Impression” Tests
On infringement, the CJEU clarified that courts must assess whether protectable creative elements of the work have been taken.
This has important practical implications for certain Member States where courts traditionally focus on the overall impression of the objects.
For example:
- In the Netherlands, copyright infringement in applied art cases has often been assessed on whether the allegedly infringing product creates the same or a similar overall impression.
The Mio/Konektra ruling indicates that such approaches must be reoriented toward a more analytical assessment of:
- which elements are protected by copyright, and
- whether those specific creative elements were reproduced.
Why Local Counsel Is Essential
Although Mio/Konektra establishes EU-wide principles, its application remains highly dependent on national courts:
- Courts may differ significantly in how they interpret “creativity”;
- Evidentiary requirements and procedural standards vary;
- National infringement tests may need adjustment in light of the ruling.
- For foreign IP firms, this judgment highlights the importance of early collaboration with local counsel, particularly when:
- advising on EU-wide design protection strategies,
- preparing copyright-based enforcement actions,
- coordinating copyright, design and trademark claims.
Key Takeaways
- Do not assume that “non-functional design” automatically equals copyright protection
- Advise clients to document creative choices from the outset
- Expect divergent national applications of the creativity test
- Work closely with local counsel to align strategy with national practice
Our attorneys would be delighted to provide you with more information and assistance in the matter of design and copyright protection.