Mio and Konektra

Key takeaways

Can a piece of furniture, a garment or any useful object be protected by copyright as easily as a painting? Yes, answers the Court of Justice: works of applied art are subject to the same originality test as any other work, with no stricter threshold. What matters is whether the creation reflects free and creative choices.

The Court sets two limits, however. Elements dictated by the object's function are not taken into account. And infringement requires a recognisable taking of the creative elements, not a mere overall resemblance. For a video game character's outfit, this means that a franchise must show what is creative in the combination copied, and not only that it is recognisable.

The ruling joins two cases, a Swedish one about a table and a German one about a modular furniture system. The Court made clear that there is no rule-and-exception relationship between design law and copyright: the two cumulate if their respective conditions are met. The creator's intentions, sources of inspiration or the recognition of the object in professional circles may be taken into account, but are neither necessary nor decisive.

On infringement, the Court set aside the overall impression test, which belongs to design law. The question is whether the creative elements of the work have been recognisably reproduced. The nuance weighs heavily in disputes over merchandise and costumes.