The ‘Mio and Konetra’ judgments of the Court of Justice of the European Union (CJEU) (judgment of 4 December 2023, case nos. C-580/23 and C-795/23, GRUR-Prax 2023, 732) were eagerly awaited.
Works of applied art have repeatedly been the subject of Supreme Court rulings in recent decades, and more recently on numerous occasions. For example, the Federal Court of Justice (BGH) has recently ruled on the copyright protection of the Porsche 356 (ECJ GRUR 2022, 899 – Porsche 911), a display cabinet light (BGH GRUR 2023, 571), and the Birkenstock sandal (BGH GRUR 2025, 407). The ECJ has also addressed the copyright protection of works of applied art several times, including in relation to a chair designed by Ray and Charles Eames (ECJ GRUR 2024, 1800 – Kwantum Nederland and Vitra), a folding bicycle (ECJ GRUR 2020, 736 – Brompton/Get2Get), and a pair of jeans (ECJ GRUR 2019, 1185 – Cofemel/G-Star).
In the ‘Mio/Konetra’ judgments, the ECJ addressed the copyright protection and scope of protection of a table and the USM Haller furniture system. The ECJ has developed guidelines that fundamentally alter German copyright law and the principle inherent therein, according to which the scope of protection of a copyrighted work is primarily determined by the work’s degree of individuality (‘level of creativity’).
a) Principles regarding the European concept of a work
Utility items are protected under German copyright law if they are classified as works of applied art under Section 2(1)(4) of the German Copyright Act (UrhG). This includes creative products and designs. In all cases, a prerequisite for protection is the existence of a personal intellectual creation, as defined in Section 2(2) of the UrhG.
The criteria for determining whether such an intellectual creation enjoys copyright protection are primarily based on the case law of the European Court of Justice (ECJ) regarding the so-called ‘European concept of a work’.
According to this, in order to be protected as a ‘work’, an object must fulfil two conditions: firstly, it must be original, representing the author’s own intellectual creation; and secondly, the object must be sufficiently precise and objectively identifiable, without the form of expression necessarily having to be permanent.
Leading case: ECJ judgment of 13 November 2018 – C-310/17, paras. 35–40 – Levola Hengelo; subsequently, ECJ judgment of 11 June 2020 – C-833/18, paragraph 22 et seq. – Brompton v Get2Get; and ECJ judgment of 24 October 2024 – C-227/23, para. 48 et seq. – Kwantum Nederland v Vitra).
Regarding the first requirement of individual character (originality), it is necessary and sufficient that the subject matter of protection reflects the creator’s personality as an expression of their free and creative decisions. This must not be solely the result of the design’s aesthetics and is excluded where the design is determined exclusively by technical considerations, rules, or other constraints that leave no scope for creative freedom (ECJ, judgment of 12 September 2019 – C-683/17, paras. 30 et seq., 53 et seq. – Cofemel v G-Star).
The ECJ has now further clarified this case-law for utility items in the ‘Mio and Konektra’ judgments (GRUR-Prax 2026, 732) and ruled that no higher requirements may be imposed on the copyright protection of works of applied art than on other types of works. The only decisive factor is that a work meets the conditions for protection under the EU legal definition of a work, not whether the work achieves a certain level of creativity.
The criteria developed in the ‘Mio and Konektra’ judgments regarding copyright protection for utilitarian objects can be summarised as follows:
Accompanying circumstances such as the use of generally known forms (so-called existing repertoire of forms), the reference to existing designs, the possibility of independent parallel creation or subsequent professional recognition may be taken into account, but are neither sufficient nor necessary to establish originality (para. 76 et seq.).
Originality derives exclusively from the creative achievement discernible in the work. The ECJ case law emphasises the identifiability of the expression protected by copyright, not merely the idea. The author’s personality must be recognisable in the work itself (para. 73 et seq.).
b) Scope of protection and infringement assessment
In the ‘Mio and Konektra’ judgments, the ECJ also addresses the determination of the scope of protection, which is decisive for the infringement assessment. It rules that the scope of protection of the earlier work is determined exclusively by the creative elements contained therein. An infringement of copyright exists only if the new product reproduces, in a recognisable manner, those elements which constitute the originality of the protected work.
The assessment of infringement can be summarised as follows:
Copyright law therefore does not protect the overall impression as such, but only the reproduction of individual creative forms of expression. An infringement may therefore already exist if a single original element of the work is recognisably reproduced.
c) Conclusion and Outlook
The ‘Mio and Konetra’ judgments establish that a utilitarian object is eligible for copyright protection only if it is an expression of the author’s free and creative decisions, reflecting their personality. In exceptional cases, design elements dictated by technical requirements may be protected, provided the technical specifications did not prevent the author from expressing their personality in the design. However, a certain degree of individuality in the form of a ‘level of creativity’ is no longer a prerequisite for the copyright protection of works of applied art.
In future, it is recommended that a feature analysis, as is familiar in design law, be carried out to assess copyright infringement with regard to the original design elements of the protected work. This is because the overall impression of the designs is no longer decisive; the sole determining factor is whether the new design incorporates recognisable elements that are protected by copyright from the earlier work. If only non-original elements are reproduced, there is no copyright infringement.
It remains to be seen how this ruling will change German copyright law and be implemented in case law.
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