In a long-awaited development for professionals working at the intersection of design and intellectual property, Advocate General Maciej Szpunar has issued his opinion in the joined cases Mio (C-580/23) and USM Haller (C-795/23), raising core questions about the threshold for copyright protection of applied art. The cases, currently before the CJEU, bring into focus whether furniture and product designs can obtain copyright protection based solely on originality, or whether additional criteria such as "artistic merit" or "aesthetic value" should apply.
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Evert van Gelderen, attorney-at-law and founding partner at Clairfort. Photo: LinkedIn.
This article draws from the legal insights of Evert van Gelderen, attorney-at-law and founding partner at Clairfort, who specialises in intellectual property and commercial contracts. Van Gelderen's commentary, grounded in recent jurisprudence and comparative perspectives from the Netherlands, Germany, and Italy, highlights the practical impact this opinion may have on designers, rights holders, and manufacturers operating in the European interior design sector.
The case backgrounds: Mio and USM Haller
The Mio case concerns a dispute in Sweden between Asplund, a company that designs and produces furniture, and Mio AB, a furniture retailer. Asplund claims that Mio's "Cord" table infringes its "Palais Royal" design. The core issue is whether the "Palais Royal" table meets the originality standard for copyright protection.
The USM Haller case in Germany involves USM U. Schärer Söhne AG, known for its modular chrome-tube furniture system. USM alleges that Konektra GmbH infringed its copyright by offering a structurally identical modular system, after initially providing only compatible components.
Copyright and design law: no higher threshold for applied art
In both cases, the national courts referred questions to the CJEU concerning whether applied art should face stricter originality requirements. AG Szpunar's response is unambiguous: 'There is no legal basis for imposing higher originality standards on works of applied art.'
This aligns with earlier rulings such as Cofemel (C-683/17) and Brompton Bicycle (C-833/18), where the Court clarified that copyright protection in the EU requires only that a work is original, meaning it reflects the author's own intellectual creation, regardless of the work's category or commercial application.
The AG reaffirmed that "artistic" or "aesthetic" value does not factor into the legal standard:
'The term 'artistic' evokes a value judgment in the sense of a relatively high degree of artistic success. However, such judgments are not relevant in copyright law.' (AG Opinion, paragraph 43)
This stance is consistent with how originality is treated across copyright law. It does not allow courts to weigh a work's cultural standing, critical acclaim, or market success.
How originality is assessed: intention versus expression
The AG distinguishes between the designer's intention and the expression of that intention in the product. What matters legally is whether the final product shows "free and creative choices reflecting the personality of the author."
While factors such as past patents, use of geometric shapes, or inspiration from existing designs can be relevant, none are determinative. The AG clarifies that even derivative works by the same author may enjoy full protection if they carry original elements. Novelty, exhibition history, and professional acclaim may serve as indications but are neither necessary nor sufficient to establish originality.
Infringement: a different threshold than design law
In assessing infringement, Szpunar's opinion makes a distinction between design and copyright law. Unlike design rights, copyright infringement does not depend on whether the overall impression is similar. Instead, infringement occurs when recognisable original elements, those that embody the author's personality, are reproduced.
The degree of originality has no bearing on the scope of protection once a work qualifies for copyright. Works following the same trend or drawing on common sources may coexist, unless specific creative elements are duplicated.
Differing national perspectives
The AG's opinion may realign certain national approaches to applied art. In the Netherlands, IP experts such as Professor Tobias Cohen Jehoram consider the opinion a clear departure from restrictive interpretations, such as the German Birkenstock approach. 'The dated German approach goes out the window,' Jehoram commented.
In contrast, some German practitioners, including litigator Richard Dissmann, argue that the AG does not depart significantly from German jurisprudence. According to Dissmann, Szpunar merely advises against value-laden terminology: 'He recommends avoiding the term "artistic". The BGH used "künstlerisch", which carries a slightly different meaning.'
Italy stands apart with its long-standing dual requirement of both originality and "artistic value" (valore artistico). Italian courts and commentators continue to support this threshold, interpreting artistic value as a filter for copyright eligibility in industrial design. Evert van Gelderen notes that this divergence could lead to further clarification from the CJEU.
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Industry implications
For manufacturers, retailers, and designers within the European interiors sector, the AG's opinion may clarify how copyright intersects with design freedom. It suggests that market success, critical reception, and aesthetic judgments, though relevant commercially, will not influence the availability of copyright protection under EU law.
The CJEU's final ruling, expected later this year, will determine whether AG Szpunar's analysis becomes binding. For now, the opinion signals that applied art should not face stricter legal tests simply due to its functional context.
More information:
MARQUES
info@marques.org
www.marques.org
Evert van Gelderen (Clairfort)
info@clairfort.nl
www.clairfort.nl