In a highly significant judgment delivered on 4 December 20251, the Court of Justice of the European Union (CJEU) provided important clarifications on the conditions for copyright protection of design and applied art objects. In the joined cases Mio / Asplund and USM / konektra, the Court was asked to determine how originality must be assessed for utilitarian objects subject to technical constraints, and how copyright infringement should be identified in the field of design.
The judgment consolidates the Court’s previous case law (Infopaq, Cofemel, Brompton Bicycle), while addressing recurring uncertainties. It expressly rejects the notion that applied art works should be subject to a higher originality threshold and refocuses infringement analysis on the recognisable copying of creative elements, ruling out the use of the “overall impression” test used in design law.
The disputes submitted to the Court concerned, respectively, a series of dining tables marketed by Swedish company Asplund under the name “Palais Royal”, and the well-known modular furniture system “USM Haller”, composed of chromed tubes and coloured metal panels manufactured by Swiss company USM. In both cases, the claimants sought copyright protection as works of applied art. The Swedish and German courts referred multiple questions to the CJEU regarding the assessment of originality and the scope of protection.
The CJEU began by affirming that the notion of “work” under Directive 2001/29/EC is an autonomous concept of EU law, which must apply uniformly across all categories of creation. To qualify as a “work”, an object must satisfy two cumulative conditions: it must constitute the author’s own intellectual creation and it must express that creation in an identifiable manner. The Court explicitly ruled out the possibility of applying a heightened originality test to applied art works on the basis that they may also be eligible for protection under design law.
Copyright protection and design protection follow distinct objectives, are governed by different criteria, and may coexist only where the object genuinely meets the copyright requirement of originality. There can be no hierarchy of regimes and no presumption of exclusion or limitation based on the availability of design protection. National courts are therefore prohibited from reinstating former doctrines such as an “elevated artistic threshold” for applied art, regardless of historical practice in certain jurisdictions.
Accordingly, any utilitarian object—a table, a modular system, a consumer product—may be treated as a copyright work if it expresses free and creative choices attributable to its author. Technical constraints do not automatically negate originality, provided those constraints do not eliminate all design freedom and the object displays a form that reflects the author’s personality.
The judgment then clarifies how “free and creative choices” must be identified. The Court stresses that such choices must be perceptible in the object itself. Copyright protects the expression of creative choices, not concepts or intentions. Thus, originality must be assessed by examining the formal result, rather than relying on subjective statements by the designer.
While courts may consider the creative process or the author’s declared intentions, these elements can only play an ancillary role. They are relevant only if they are objectively reflected in the form of the work. The Court also introduces an important nuance: a choice may not be technically dictated and yet may still fail to express the author’s personality. In other words, the absence of constraint is not sufficient to establish originality. A formally “free” choice must contribute to a recognisable, individualised result in order to merit copyright protection.
Conversely, the use of commonplace forms does not automatically prevent protection. Ordinary or pre-existing shapes may be protected if their combination or arrangement manifests a genuine expression of the author’s personality. However, aesthetic appeal or artistic recognition cannot be used as independent criteria. The fact that a design is visually striking, exhibited in museums or praised by experts cannot replace the legal examination of originality, since these elements are external and subsequent to the creation.
The judgment also brings much-needed clarity to infringement analysis. The Court reiterates that copyright is infringed when a protected work is used without authorisation, even where only part of the work is reproduced, provided that the extracted elements express the author’s intellectual creation. Courts must therefore identify the creative elements of the work and determine whether they have been reproduced in a recognisable manner in the disputed product.
The Court firmly rejects the transposition into copyright of the “overall impression” test used in European design law. Infringement does not depend on a general visual similarity between products, but on the copying of identifiable creative elements. Importing the design test into copyright would risk obscuring the very elements that justify protection and would undermine the autonomy of the copyright regime.
The Court also emphasizes that once a work meets the originality requirement, there is no gradation of protection based on the “degree” of originality. Similarly, the mere possibility of independent creation by a third party cannot justify denying copyright protection. However, if independent creation is proven, no infringement will be established, as there will be no copying of protected elements.
The 4 December 2025 judgment now serves as a key reference for assessing and enforcing copyright rights in the design sector. It encourages designers and manufacturers to document the creative process not for the purpose of claiming artistic intention, but to identify the formal aspects that reflect creative individuality. It also provides distributors and industrial operators with a clearer legal test for evaluating the risk of reproducing protected elements when drawing inspiration from market trends.
Beyond technical considerations, the CJEU reaffirms a fundamental principle: copyright protects what the object expresses, not what the author claims. Creativity is evidenced in form, and it is in that form that the law finds its basis for protection.
1 CJEU, First Chamber, 4 December 2025, joined cases C-580/23 and C-795/23, ECLI:EU:C:2025:941
