When is your design protected by copyright?
On 4 December 2025, the Court of Justice of the European Union (CJEU) handed down its judgment in two joined cases: Mio (C-580/23) and Konektra (C-795/23). Both cases concerned the copyright protection of designer furniture. The central question is when a piece of applied art, such as a table or modular cabinet system, qualifies for copyright protection, and when copying one constitutes infringement.
The ruling was years in the making and directly affects how designers, manufacturers, and courts across the EU approach these questions.
The cases pertain to a copyright claim for the so-called "Palais Royal" dining table and the "USM Haller" modular system. Are these protected by copyright? And do the competitors infringe on these copyrights? In both cases the plaintiff sued for copyright infringement. Both cases also raise another fundamental question: how does design law (which protects the appearance of a product) relate to copyright law, and what standards apply?
The EU Court rules that where a design results from free, creative choices reflecting the designer's personality, it is protectable under EU copyright law. There is no separate, higher threshold for a design. A chair, a cabinet, or a lamp must meet exactly the same originality standard as any other work. However, copyright does not protect every functional object automatically. The Court is quite clear: choices driven (exclusively) by technical or functional requirements, ergonomics, or safety regulations are not creative choices. They are constraints, and constrained choices cannot find a copyright claim. Whether a particular design meets this threshold cannot be stated in general terms. It depends on the specific circumstances of each case and must be assessed on an individual basis.
In another landmark IP-case at the end of 2025, the EU Court handed down a judgment on protection of product design by design law. Only novelty and individual character matter for design protection. In short, this means that originality is not a requirement under design law. Also, trends (such as fashion trends) do not diminish the importance of elements in the design’s overall impression, and in principle do not hinder design law protection.
When does someone infringe your design?
The EU Court also ruled on the infringement test for copyright and designs, which can be qualified as a significant shift in IP-protection.
For many years, Dutch courts applied a relatively simple infringement test under copyright law: do two objects create the same "overall impression"? This was later nuanced by also taking into account the copyrightable traits of an object. The underlying argument however remained the same: if a competitor changed enough details to alter that overall impression, could they potentially escape liability?
The EU Court has now ruled explicitly that the overall impression test belongs to design law, not copyright law. In copyright, the question is different and more precise: have specifically identifiable, copyright-protected creative elements been reproduced in a recognisable way in the allegedly infringing object? Importantly, the degree of originality does not affect the scope of protection. A work that only just qualifies is not entitled to thinner protection than one that is highly original. In the Court's own words: “in order to establish a copyright infringement, it is necessary to determine whether creative elements of the protected work have been reproduced in a recognisable manner in the allegedly infringing subject matter.”
Under a very recent EU Court case the infringement of copyright “need not consist in the complete reproduction of the work, but may consist in a partial reproduction”. The Court added that the various parts of a work may also enjoy protection under the Copyright Directive (Article 2(a) of Directive 2001/29), provided that they contain elements which are the expression of the intellectual creation of the author of the work.
In practice, this means that broad similarity between two objects may no longer suffice in copyright infringement cases. The specific creative elements, and the reproduction of such elements in a recognizable way, must be identified. Equally, tweaking a product enough to alter its overall appearance may no longer be sufficient to escape liability. Drawing inspiration from existing design remains permitted, however, following a style or a trend is, in principle, not an infringement.
Under EU design law, the question still remains whether the allegedly infringing object produces a different overall impression on the "informed user". This is a person who is familiar with the type of product in question and pays a higher degree of attention than the average consumer. Therefore, copyright and design rights can coexist in the same object, but they operate under different frameworks. While for copyright, the recognizable-reproduction test now applies, the overall impression test remains the benchmark for design rights.
Why protecting your IP pays off
The connection between IP rights and business performance is no longer just a legal argument, it is backed by hard data. The creative and cultural sector alone represents approximately 4% of EU value added and 6.9% of EU GDP, employing around 8 million people. Studies published in January 2025 by the European Patent Office (EPO), and recently in 2026 by the European Union Intellectual Property Office (EUIPO) confirm what IP means for businesses.
EPO analysed approximately 119,000 European firms across all 27 EU Member States over a ten-year period (2013–2022). The findings are striking: SMEs that own IP rights generate 44% more revenue per employee than those that do not. Yet fewer than 10% of SMEs own any registered IP right. For designers and creative businesses, the takeaway is clear: formal IP registration is not just a legal formality, it is a competitive advantage that most small businesses are leaving on the table. Registration of design rights, trademarks, and patents complements your automatic copyright protection and adds enforceable, layered security to what you create.
A recent EUIPO study (April 2026) confirms this. IP-intensive sectors account for nearly half of EU GDP, yet only 13% of rights holders have ever used their IP as a basis for financing, an addressable market the EUIPO estimates at €70 to €150 billion per year. For designers, that means a registered design or trade mark is not only a legal shield in court, but potentially a bankable asset that can unlock growth capital.
AI and your creative work
While formal registration strengthens your position, a new front is opening: the intersection of copyright and artificial intelligence.
On 10 March 2026, the European Parliament adopted a resolution on copyright and generative artificial intelligence. This is not yet binding legislation, but it is a clear political mandate that will directly shape the coming revision of the Copyright in the Digital Single Market Directive (the "CDSM Directive", the EU's main copyright framework for the digital environment). Whether your business develops, deploys, or uses AI – or whether you create content that AI systems may train on, such as designs published online – this is directly relevant.
The resolution identifies unauthorised scraping of content from the internet, non-compliance with text and data mining opt-outs, use of pirated sources, and failure to seek licence agreements as a systemic problem. In practice, if your content is published online, it is likely already being used as training data. Political attention to this issue is growing rapidly, making now the time to assess your exposure and take steps to protect your content.
The Parliament proposes legislation that goes beyond the existing copyright framework, concluding that the current rules are insufficient to address AI licensing. In practice, this would mean that AI providers would need to obtain licences or demonstrate that they have not used your work. For rights holders, this creates a bargaining position that does not currently exist under the CDSM Directive.
Interestingly, the Parliament calls for a rebuttable presumption — a legal assumption that applies unless the other side proves otherwise. If an AI provider has not complied with its transparency obligations, it is presumed that copyright-protected works were used. If a rights holder succeeds on that basis, the provider bears the reasonable legal costs.
The Parliament proposes two specific roles for the EUIPO: first, managing a central register of opt-out exclusions so that AI providers have a single compliance tool; and second, supporting sector-based licensing processes.
The resolution also confirms that there is no copyright for purely AI-generated content. Content generated entirely by AI, without sufficient human creative input, remains ineligible for copyright protection, and its public domain status must be clearly established
IP-contracting
The above mentioned developments are also relevant for IP-contracting and distribution of IP-protected products. As a general rule, only the holder of an IP right can grant a licence or assign that right to a third party. This sounds straightforward, but the layered nature of IP protection – with explicitly distinct respective frameworks – makes it more important than ever to identify precisely who owns what, and on what basis.
Given that copyright and design rights can coexist in the same product while operating under entirely different legal standards, contracts must clearly specify which rights are being licensed or transferred (also in the case of employment contracts, joint development and commissioned works). A licensing agreement that refers broadly to "all intellectual property rights" in a product may now require careful interpretation: does it cover copyright in the specific creative elements identified under the new infringement standard? Does it extend to registered or unregistered design rights? Is the design registered, and if so, in which territories?
For distribution agreements, similar precision is required. A distributor authorised to sell IP-protected products is not automatically authorised to reproduce, adapt, or sublicense those products. The recent CJEU rulings make clear that the reproduction of specific, identifiable creative elements – even in part – may constitute copyright infringement. Activities such as product photography, catalogue reproduction, or adaptation of a product for a different market must therefore be expressly addressed in the distribution agreement.
The AI developments add a further dimension. Contracts with freelancers, designers, or studios should now expressly address the use of AI tools in the creative process and allocate ownership of AI-assisted outputs. Since AI-generated content without sufficient human creative input does not attract copyright protection, it is essential to ensure that deliverables reflect genuine human authorship if copyright is to attach. Equally, contracts with AI tool providers should be reviewed to understand what rights – if any – the provider claims over inputs and outputs, and whether opt-out provisions have been properly invoked with respect to training data.
Finally, as the EUIPO data confirms, registered IP rights are increasingly recognised as financeable assets. When structuring IP licences or assignments, businesses should bear in mind the potential to use those rights as collateral or to leverage them in financing arrangements. This requires that ownership is clearly established, rights are validly registered, and the contractual framework does not inadvertently encumber or restrict their exploitation.
What does this mean for your business?
The legal framework around creating, owning, and protecting intellectual property is being actively rewritten by courts, by data, and by legislators.
The recent CJEU rulings change the mechanics of copyright and design protection. The EPO/EUIPO data makes the business case for IP ownership more concrete than ever. And the recent developments on AI will more than ever govern the relationship between human creativity and machine learning. For businesses that create, the practical response to all three is the same: document what you make, register where you can, understand what you own and implement the best strategy for exploiting your IP.
Practical checklist
- Document your design process from the start. Sketches, prototypes, rejected alternatives, and design notes are your evidence. And being able to point to specific copyrightable and design elements.
- Register what you can in order to build your IP-portfolio, and enforce your IP in case of infringement.
- Check your contracts, like employment contracts, IP-licences, distribution agreements etc. on IP provisions, and tailor these to your business needs.
For advice on design protection, copyright enforcement, IP registration, contracts and portfolio strategy, or AI compliance, please get in touch with our team.
