Copyright in Applied Art: CJEU Sets a Clearer, Stricter Test

Background

The joined cases stem from parallel disputes over contemporary furniture. In Sweden, the Swedish company Galleri Mikael & Thomas Asplund Aktiebolag ("Asplund") alleged that the "Cord" table commercialized by Swedish companies Mio AB, Mio e-handel AB, and Mio Försäljning AB ("Mio") infringed the copyright in its "Palais Royal" table. In Germany, USM U. Schärer Söhne AG ("USM") pursued konektra GmbH ("Konektra") for marketing compatible components and fully assembled items based on the USM "Haller" modular system.

In both cases, the national courts stayed proceedings and referred questions to the ECJ on: (i) the subsistence threshold for works of applied art; (ii) the evidence and indicia relevant to proving originality; and (iii) the correct standard for infringement—asking, in particular, whether the design‑law test of "overall visual impression" is applicable or whether infringement requires recognizable reproduction of the work's creative elements.

Key Aspects of the Ruling

The ECJ's Mio/Konektra ruling resolves three recurring questions in EU copyright litigation over applied art. 

Originality Is the Sole Requirement—No Heightened Threshold for Applied Art. First, it confirms that originality, understood as the expression of the author's free and creative choices reflecting their personality, is the only gateway to copyright protection for applied art. There is no higher or special threshold, and no rule/exception hierarchy vis‑à‑vis design protection. That conclusion consolidates the ECJ's line since Flos and Cofemel cases and removes space for Member State add‑ons such as "artistic value." 

How to Prove Originality: Focus on the Creative Process. Second, on proving subsistence, the ECJ resists rigid checklists. Evidence is admissible if it tends to show that free and creative choices are embodied in the finished object. Elements dictated by technical function, industry constraints, or commonplace choices lack creative character. Crucially, the author's intentions or creative process matter only insofar as they are manifest in the work itself; contextual factors (such as inspiration, use of commonplace forms, likelihood of independent creation, or professional recognition) may be considered but are neither necessary nor sufficient. Equally, aesthetic appeal alone does not establish originality, as beauty or perceived artistic merit cannot substitute for the originality test. The practical takeaway is procedural: claimants cannot presume the creative nature of their choices—they must prove it. 

Infringement: Recognizability of Copied Creative Elements, Not "Overall Impression." Third, the ECJ refines infringement. It rejects the "overall impression" assessment familiar from design law as determinative for copyright. Instead, the legal question is whether the original, creative elements of the protected work have been reproduced recognizably in the challenged object. The recognizability safeguard narrows the inquiry to protect only the author's original contribution while filtering out overlap in purely functional or conventional features. The scope of protection does not expand nor contract with a supposed "degree of originality," and independent creation remains a complete defense.

In addition, the ECJ reiterated that copyright and design protection may cumulate, but their conditions and enforcement tests are distinct. Novelty and individual character govern design rights and support the "overall impression" test for design infringement, whereas copyright hinges on originality and protects against recognizable reproduction of the author's original choices.

Practical Implications

These clarifications carry immediate consequences for strategy and evidence. 

For Rights Holders. Rights holders should document the creative latitude available at the time of creation, the choices actually made, and how those choices are expressed in the product—ideally with contemporaneous sketches, iterations, and design rationales separating functional from creative decisionmaking. Expert evidence may be used to address industry constraints to demarcate what could have been chosen freely. Plaintiffs should avoid defaulting to design‑law similarity heuristics and anchor pleadings to specific creative features that were carried over recognizably.

For Defendants. Defendants can organize non‑infringement around three pillars: demonstrating that any commonalities are dictated by function or norms; showing that allegedly copied features are unprotectable banalities; and adducing evidence of independent creation. The ECJ's disentangling of copyright and design tests also helps defendants resist arguments that design non‑distinctiveness or overall impression analysis should carry over.

For Policymakers and Courts. Member States with statutory criteria beyond originality for applied art must revise legislation and, more importantly, adjust adjudicatory practice so that "artistic value" or similar filters are not reintroduced through the back door of originality. Courts must avoid importing design‑law concepts when assessing copyright infringement, keeping the analysis focused on recognizable reproduction of the protected creative expression.

Finally, the decision may resonate beyond furniture and industrial design. For digital and interface design, the same framework applies: Creative choices in layout, proportion, and arrangement can be protected, but functional or standardized elements cannot. Although the ECJ did not address AI, the recognizability criterion may shape how parties argue alleged copying where large corpora of designs circulate online. Plaintiffs will need to identify the original expressive configuration that has been reproduced, not just a similar look and feel.