MIO & Konektra – the CJEU clarifies key issues in copyright law

In a judgment delivered on 4 December 2025, the Court of Justice of the European Union (CJEU) provided important clarifications on the conditions for copyright and design protection of works of applied art.

The disputes referred to the Court concerned, on the one hand, a series of dining tables marketed by the Swedish company Asplund under the name “Palais Royal” and, on the other hand, the modular furniture system “USM Haller”, manufactured by the Swiss company USM. In both cases, the claimants invoked copyright protection for works of applied art. The Swedish and German courts referred several questions to the CJEU concerning the relationship between copyright and design law, how originality is to be assessed for utilitarian objects subject to technical constraints, and how copyright infringement is to be assessed in the field of design.

Double protection – the relationship between copyright and design law
The Court held that a design may qualify as a work within the meaning of copyright law if it constitutes the author’s own intellectual creation and expresses that creation in an identifiable manner. The Court further stated that design protection (design right) and copyright protection may coexist for the same object, provided that the conditions for protection under the respective legal regimes are met, and that there is no hierarchy between the protections.

The Court also stated that the originality of works of applied art must be assessed according to the same criteria as those used to assess the originality of other types of works. All utilitarian objects—a table, a modular system, a consumer product—may therefore enjoy copyright protection if the object expresses free and creative choices attributable to the author. Technical constraints do not exclude originality, provided that those constraints do not eliminate the author’s freedom of choice and that the object has a form that reflects the author’s personality.

Originality – focus on the objective expression of creative choices
The Court then clarifies how “free and creative choices” are to be understood. It emphasizes that such choices must be perceptible in the work itself. Copyright protects the expression of creative choices, not concepts or intentions. While courts may take account of the creative process or the author’s stated reflections, these elements can only play a subordinate role and only insofar as they are objectively reflected in the appearance of the work.

Furthermore, aesthetic appeal or artistic recognition cannot be used as independent criteria. The fact that a design is exhibited in museums or praised by experts cannot replace the legal assessment of originality, since these elements are external and arise only after the work has been created.

Copyright infringement – “creative elements”, not the “overall impression”, are decisive
The judgment also provides some clarity on how infringement is to be assessed. The Court points out that copyright is infringed when a protected work is used without authorization, even if only part of the work has been copied, provided that the copied elements express the author’s intellectual creation. Courts must therefore identify the creative elements of the work and determine whether they have been “copied” in a recognizable manner in the contested product. The Court thus rejects the incorporation into copyright law 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.

Finally, the Court notes that trends are irrelevant in the assessment of infringement. The use of a protected creative element may constitute infringement even if that element forms part of a trend.

Practical consequences
The judgment removes uncertainty regarding the boundary between copyright protection and design protection and offers a new reference point for assessing copyright infringement in the design sector. It also makes it easier for industrial actors to assess the risk of committing infringement of protected elements when drawing inspiration from market trends.

Please contact Gulliksson’s copyright team if you have any questions or for advice on copyright issues.