CJEU confirms that utilitarian objects are subject to the same originality requirements as any other work

CJEU confirms that utilitarian objects are subject to the same originality requirements as any other work

On 4 December, the Court of Justice of the European Union ruled on Cases C-580/23 and C-795/23, clarifying that utilitarian objects can be protected by copyright if they reflect the author’s free and creative choices, under the same criteria as any other work. The Court also set out criteria for assessing both originality and infringement through the reuse of recognisable creative elements.

Case C-580/23 concerned a dispute in Sweden between Asplund and Mio. Asplund is a Swedish furniture manufacturer that markets the 'Palais Royal' dining tables, among other products. Meanwhile, Mio is a Swedish retailer of furniture and home goods, including tables from the 'Cord' series. In October 2021, Asplund sued Mio for copyright infringement, seeking an injunction against the manufacture and sale of 'Cord' tables due to their strong resemblance to 'Palais Royal', on the basis that the latter are protected as works of applied art. The court of first instance ruled in Asplund's favour. However, Mio appealed to the Svea Court of Appeal, a specialised court for patent and market cases in Stockholm. Uncertain about how to evaluate 'originality' in utilitarian objects, the court referred several questions to the CJEU regarding the concept of a work and the criteria for assessing originality and infringement in applied art.

Case C-795/23 centres on a dispute in Germany between USM and Konektra. For decades, USM has manufactured the modular 'USM Haller' system, which is based on high-gloss chromed cylindrical tubes, spherical connectors, and coloured metal panels that can be combined. Konektra initially sold compatible spare parts, and since 2018 its website has displayed and promoted all the components needed to assemble 'USM Haller' furniture. The company also offers an assembly service and provides instructions for building complete furniture from the parts. However, USM argued that Konektra was selling an identical system of its own and not just spare parts, and sued for an injunction, disclosure and damages. In the first instance, the Düsseldorf Regional Court upheld the claim, based primarily on copyright grounds. However, the Higher Regional Court overturned the decision, ruling that the system did not qualify for protection as a work of applied art. Both parties appealed to the Federal Court of Justice of Germany (Bundesgerichtshof), which referred questions to the CJEU regarding the level of originality required for applied art, the role of the author’s creative process and the relevance of subsequent professional recognition.

Given the connection between the two cases, the CJEU joined them for hearing and judgement, answering the national courts’ questions together.

Germany’s Federal Court of Justice asked whether copyright protection for utilitarian objects, such as furniture and lighting, should be subject to a stricter originality standard than other works. The court was concerned about the possibility of 'double protection' through designs, which have different aims and rely on their own criteria, such as novelty and individual character. In particular, the German court considered that a relaxed view of originality could undermine the specific protection for designs and lead to indiscriminate overlap.

However, the CJEU rejected the idea of a rule-and-exception relationship between designs and copyright, ruling that applied art does not face a higher bar. The Court noted that 'work' is an autonomous EU law concept requiring only the single criterion of originality, meaning an intellectual creation that reflects the author’s personality through free and creative choices. Therefore, cumulative protection is only possible where the object meets this standard without confusing originality with the novelty or individual character that define design law. Thus, the same originality test applies to applied art as to any other work.

Secondly, the referring courts asked whether the assessment should focus on the creative process and the author’s intentions, or on the resulting object itself. In addition, they requested practical guidance on designs that draw on the sector’s common stock of forms, develop pre-existing trends, or coexist with similar designs created independently. It should be noted that there is a well-known tension between technical function and creative freedom, which is particularly evident in products that must meet ergonomic or safety requirements.

In response, the CJEU adopted an objective, object-centred approach. Free and creative choices must be evident in the design's form and cannot be presumed. Where function requires a single solution, creativity is excluded because the distinction between idea and expression disappears. Furthermore, the author’s intentions and process can only be considered if they are visible in the object, and they can never be decisive on their own. Using forms from the sector’s common stock does not necessarily exclude originality, as long as the selection and combination reflects the author’s creative personality. Likewise, inspiration from earlier works limits protection to the author’s own contributions, and the existence of similar designs created independently does not negate originality by itself. Therefore, the assessment must be based on elements present at the time of creation, with no decisive weight given to later recognition, such as exhibitions or specialist reviews.

Lastly, the Swedish court sought a clear criteria to determine whether a later product infringes a protected work of applied art. The court asked whether it is sufficient for both objects to produce the same overall impression, as is typical in design law, or whether one must identify specific creative elements of the original work that appear in the second object, as is the case in copyright law. Additionally, it asked whether the degree of originality narrows the scope of protection, and how common sources of inspiration or independent creation affect the analysis.

The CJEU proposed a test based on the 'recognisability' of original creative elements. In short, a later product infringes copyright if it incorporates identifiable contributions reflecting the author’s personality without authorisation. In copyright, the 'overall impression' comparison is not determinative, as it belongs to design law. Furthermore, the author’s degree of creative freedom does not reduce the level of protection once the work is recognised as such. A common source of inspiration merely shifts attention to the new and personal elements of the work in question. Similarly, proven independent creation excludes infringement, but a mere abstract possibility does not.

All in all, the decision clarifies and strengthens the criteria without setting the bar any higher. Utilitarian objects can be protected by copyright under the same originality criterion as any other work. However, judges must identify the features of the object itself that demonstrate free and creative choices, rather than technical functionality. This makes it clearer for sectors such as furniture, product design and fashion to invoke copyright where EU or national design protection is insufficient. It also confirms that protection does not extend to ideas, trends or solutions from the common stock, unless they are expressed in a form that reflects the author’s personality. In cases of infringement, the analysis will no longer be based on the 'overall impression' used in design law, but rather on whether the disputed product contains recognisable creative elements of the original work. In practice, this may provide creators with greater legal certainty against close copies, while setting clearer limits for competitors and aftermarket sellers. These parties may draw on general styles, as long as they avoid reproducing the specific creative features that give the copyrighted work its originality.