Cofemel

Key takeaways

The case was about jeans, but its lesson applies to every creation. According to the Court of Justice, a work is original when it results from its author's free and creative choices, reflecting their personality. A creation dictated by technical constraints is not.

For video games, this test helps sort new versions. A simple remaster that increases the resolution brings nothing protectable in itself. A remake that reinvents the staging, the settings or the gameplay, on the other hand, can give rise to new rights.

At the origin of the dispute, the G-Star brand accused the Portuguese company Cofemel of copying designs of jeans and sweatshirts. Portuguese law made the protection of utilitarian creations conditional on a striking aesthetic effect. The Court rejected that criterion as too subjective. Two conditions are enough for there to be a “work”: an original subject matter, and an expression identifiable with sufficient precision and objectivity.

The Court added a warning that is often forgotten: cumulating copyright and design protection is possible only “in certain situations”, since the two protections pursue different objectives. The line was continued in Brompton (2020) and Mio / Konektra (2025).