Articles
Often Copied, Never Equaled: When Do Everyday Items Become Subject of Copyright?
December 2025
The borderline between ‘pure’ works of art and mere utilitarian objects” – Can iconic, yet everyday products be protected under copyright?
The above question was posed by Advocate General in the Joined Cases C‑580/23 and C‑795/23 – Mio / Konektra, and the highly anticipated answers were given by the European Court of Justice on 4th December 2025.
While these two cases made it to the European Court, other famous objects were hotly contested at the national courts of Europe in the meantime. In his opinion, AG Szpunar referred to a February 2025 decision of the German Federal High Court denying copyright to iconic Birkenstock sandals. Conversely, the District Court of Midden-Nederland granted an injunction to Birkenstock on the basis of copyright for the very same products in November 2025, just weeks ahead of the CJEU’s decision.
Of course, such diverging outcomes of decisions about seemingly the same subject matter by courts of different EU Member States are frustrating not only for designers, but also for the daily consulting practice of attorneys. Further, the extent of copyright protection for relatively everyday objects, such as shoes, has wide implications for designers, retailers and indeed any one designing or selling products.
Judges as art critics?
Courts and judges among the different EU Member States have been challenged with the question whether objects of applied art would be eligible for copyright protection or not during recent times. A number of iconic objects, such as the Hèrmes bag, Brompton’s bicycle, Cofemel’s jeans, Birkenstock’s different sandal models as well as the furniture of USM Haller and Asplund were brought to the courts of the Member States and had to be judged against the existing rules of EU law for copyright.
However, as AG Szpunar pointed out, the problems arise due to the fact that the subject matter in these cases is “on the border line between “pure” works of art and mere utilitarian objects” (para. 2 of his opinion).
The judges that submitted the joined matters to the CJEU were plainly seeking clearer guidance on the standards for determining when utilitarian objects may be afforded copyright protection and about the criteria of the infringement of such copyright protection in these objects.
Starting point for copyright protection and answers regarding the concept of “work”
The undisputed starting point for the assessment of the concept of “work” covered by Article 2(a) of Directive 2001/29 remains the CJEU’s judgment of Cofemel (Case C‑683/17). Copyright protection requires two cumulative conditions:
- Originality: the subject matter is original in the sense of being the author’s own intellectual creation.
- Expression: classification as a work is reserved to the elements that are the expression of such creation.
In Mio / Konektra, as far as the first criterion is concerned, the Court found that such “originality” of the work requires that it reflects the personality of its author, as an expression of his or her free and creative choices. While it is quite self-explanatory that choices dictated by technical constraints are not free and creative, the Court also found that choices that are free, but do not show the author’s personality by giving the object a “unique appearance” (in German: “einzigartigen Aspekt”, in French “un aspect unique”, para 82) cannot lead to copyright protection of the subject matter.
Thus, the assessment of such “originality” of the subject matter is still left to the national courts of the Member States. While the CJEU provided some criteria of assessment, such as the designer or author’s intentions during the creative process, the sources of inspiration (which may be manifold and sometimes not really traceable in times of AI) or the display of subject matter at art exhibitions or museums, it also held that these are neither necessary nor decisive.
Furthermore, the CJEU found, that there was no relationship of rule and exception between designs and copyrights and that the assessment of originality of subject matter must be based on the same criteria for works of applied art as for works of “pure” art.
The question of Infringement of copyright in the (utilitarian) work
The CJEU found in its answers to the third and fourth questions posed by the Swedish Court that an infringement of the copyright in a work of applied art can be determined where the creative elements of such protected work have been reproduced in a recognisable manner. However, neither the production of the same overall impression by the challenged object is decisive, nor the degree of originality there is in the protected work (para. 92).
It remains to be seen how the referring courts and other courts of the Member States will apply these criteria of infringement.
The Birkenstock decision of the German Federal High Court
The German Federal High Court rejected copyright protection for Birkenstock’s sandals, upholding the Higher Regional Court of Cologne’s assessment on whether the impression of the sandals was the reflection of the authors’ personality and whether their features showed the free and creative choices of the author or designer.
While the court admitted that there existed a certain degree of freedom in the creation of the features of the sandals, it did not agree that this freedom was used by the author or designer. The sandals did not show the degree of creativity necessary to confirm copyright protection.
The High Court further examined the criteria which were used by the Higher Regional Court of Cologne in the assessment of copyright protection of the sandals – features of the sandals, artistic achievement of the designer, exhibition of the subject matter in museums, thoughts of the designer during the process of creation, previously known shapes – and found that the Court had provided a sufficiently detailed justification of its decision.
The Birkenstock decision of the District Court of Midden-Nederland
In stark contrast, the District Court of Midden-Nederland found that Birkenstock’s sandals combined a number – precisely 7 – of design elements, which were not present in the relevant design heritage at the time the Birkenstock sandals were created and thus rendered them capable of copyright protection under EU law.
The Court expressly stated that it was aware of the fact that the German Court had answered that question differently earlier.
In view of the recent decision of the CJEU, the Court’s assessment of originality based solely on the question whether identical subject matter existed prior to the creation of the sandals in question may now be considered overly narrow.
Conclusion
The question of copyright in works of applied art and its infringement remains complex and inherently subjective. It also has much wider implications to everyday objects and whether copyright applies to them.
The decision of the CJEU in Mio/Konektra confirms existing case law on the one hand but provides welcome guidance on the other. Whilst there is no concrete formula or calculation, there is good legal development. However, it will not totally prevent divergent decisions of the Member States’ courts in seemingly comparable cases.
Olivia Petter
Links to the decisions:
- CJEU: https://curia.europa.eu/juris/document/document.jsf?text=&docid=306835&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=16742846
- District Court of Midden-Nederland
https://uitspraken.rechtspraak.nl/details?id=ECLI:NL:RBMNE:2025:5837
- BGH:
This article was written by Attorney-At-Law Olivia Petter.