Following the "Birkenstock" ruling by the Federal Court of Justice (BGH), copyright protection for everyday objects as works of applied art is once again in the spotlight: The European Court of Justice (ECJ) has delivered its judgement in the two joined cases “Mio AB et al.” and “konektra” (ECJ, judgment of December 4, 2025 - C-580/23 (Mio AB et al.) and C-795/23 (konektra)), this time concerning designer furniture.
What happened?
The preliminary ruling proceedings "Mio AB et al." concerns the question whether the "Palais Royal" table by Swedish furniture manufacturer Galleri Mikael & Thomas Asplund qualifies as a copyright-protected work of applied art. The company claims that copyright in the table was infringed by a similar table sold by another Swedish furniture company, Mio AB. In the "konektra" case, the Swiss manufacturer USM U. Schärer Söhne, argues that its "USM Haller" shelving system qualifies as a work of applied art, and has brought an action against the manufacturer konektra for allegedly infringing imitations, seeking, among other things, an injunction and a declaration of liability for damages. Both cases raise the question if and under what requirements works of applied art can benefit from copyright protection, in addition to community design protection. The question is particularly relevant because copyright protection (70 years from the death of the author) applies for significantly longer than community design protection (3 years without registration and up to 25 years for registered designs).
Decision of the ECJ
No higher requirements for copyright protection of works of applied art
The ECJ confirmed that works of applied art are subject to the same requirements as other copyrighted works. The key criteria for qualifying as a work are whether the object is an “original” - meaning the result of the author’s own intellectual creation-, and that it reflects the author’s “free and creative choice”. On the contrary, the relevant criteria for design protection are “novelty” and “individuality”. Design protection and copyright protection serve different purposes: Design protection rewards investing in the creation of new products whereas copyrights protect creative and artistic achievements and may therefore benefit from significantly longer protection.
As the ECJ already stated in its earlier Cofemel decision (ECJ, judgement of 12 September 2019 - C-683/17), it is generally possible for an object to be protected by both, design right and copyright. These two types of protection do not exclude each other. Most importantly, there is no rule saying that objects of applied art must meet a higher standard of originality than other works, such as fine art. However, the ECJ emphasized that the requirements of design and copyright protection are not to be mixed. It must always be assessed on a case-by-case basis whether the specific requirements for copyright protection - as outlined above - are actually met.
Technical and other considerations - which factors shall be considered when assessing originality of a work?
The key question in both cases was what circumstances should be taken into consideration for evaluating if the object qualifies as an “original”. For works of applied art, unlike other works, the outcome of the creation is typically influenced by technical, ergonomic, or safety constraints. Referring to its previous Brompton Bicycle decision (ECJ, judgment of June 11, 2020 - C-833/18) the ECJ confirmed that although a work can be eligible for copyright protection, even if its realisation has in part been dictated by technical considerations, the subject matter must still reflect the author’s personality as an expression of free and creative choices. Technical features as such do not establish originality, as they limit the author's possibilities for creative expression: where the expression is dictated by technical function, the different methods of implementing an idea are generally too limited to give rise to originality.Therefore, to establish “originality”, it is not sufficient that an object simply gives an artistic or aesthetic impression. This impression alone does not qualify it as a copyrighted work.
Additionally, the creator’s internal intentions during the creation process are only relevant if they are externally visible in the object. The ECJ justifies this with the wording in the legal definition, which requires that the creator’s free and creative choices must be “reflected in” and “expressed by” the work.
According to the ECJ, if an object includes elements from a pool of pre-existing forms, this may indicate that the object has low or no originality. However, protection is not excluded per se. A work can still be protected if, despite using existing forms, those forms are arranged in a way that expresses a creative decision.
In conclusion, the ECJ explains that elements such as the author's intentions during the creative process, sources of inspiration, use of existing forms, the likelihood of an independent similar creation, or recognition by experts (e.g. the presentation in museums) might be taken into account where appropriate, but are neither required nor decisive for assessing the originality of the object. It solely matters if the object reflects the author’s free and creative decision and it is for the court seized to take account of all the relevant aspects of the particular case, as they existed when that subject matter was designed, irrespective of the factors external to and subsequent to the creation.
Copyright infringement: Does it matter if the objects create the same overall impression?
Copyright infringement occurs when a work is used without the author’s permission. According to the ECJ, a court must assess whether the object’s elements that reflect the author’s personality and make it a work have been copied in the allegedly infringing object. Notably, comparing the overall impression is not decisive—this is only a criterion for design rights. However, if two objects share the same source of inspiration, it must be carefully examined whether the elements of the newer object are in fact a direct copy of the creative elements of the earlier work – or if the similarity results from both objects being part of a similar artistic style, without any specific creative elements being clearly identifiable. Only if the creative elements have actually been copied, copyright infringement occurs.
What are the practical implications?
The ruling clarifies that everyday objects are essentially subject to the same requirements for protection as other types of copyrighted works. It also emphasises that only the recognisable creative elements can be relevant for assessing copyright protection. Factors external to and subsequent to the creation generally are not relevant. The ECJ has not introduced any major changes but has confirmed and refined its existing case law. Where technical considerations have influenced the realisation of the subject matter, copyright will only exist if and to the extent that the subject matter reflects the author’s personality and creative choices. Cases evolving around copyright protection for everyday objects will focus on this fine distinction, which may not be easy to prove. In the end, as the ECJ has repeatedly emphasized, each case will still require a thorough and detailed individual assessment by the court seized.
