In a highly anticipated ruling delivered on 4 December 2025, the Court of Justice of the European Union (CJEU) ruled on the copyrightability of works of applied art (Joined Cases C-580/23 and C-795/23). The ruling stemmed from disputes involving the Swiss manufacturer USM and its popular modular furniture system, as well as a Swedish manufacturer of dining tables, both asserting claims against alleged infringers.
(1) Relationship between design protection and copyright protection
While cumulative protection by design and copyright law may be envisaged for the same subject matter, the CJEU confirmed that there is no automatic connection between the grant of protection under design and copyright law. The conditions for such protection – novelty and individual character for designs and originality for copyright – must not be confused. Thus, there is no relationship of rule and exception between the protection reserved for designs and the protection granted by copyright.
(2) Factors in the assessment of originality for copyright purposes
The CJEU specifically addressed the relevance of the following factors in determining originality of subject matter:
- Assessment of the originality of subject matter of applied art: The CJEU reminded that courts must seek out and identify the creative choices in the shape of the subject matter to assess its copyrightability, but that the creative nature of choices made by the author cannot be presumed. While artistic or aesthetic considerations play a part in creative activity, the fact that a design generates such an effect does not, in itself, justify that design being classified as a work.
- Consideration of the creative process and the author’s intentions: The CJEU clarified that the creative process and the author’s creative intentions may only be taken into account if they are expressed in the subject matter itself. The author’s intentions lie within the realm of ideas, and copyright law does not protect ideas, but only their expression.
- Consideration of the use of available shapes: The use of already available shapes does not in itself exclude originality. A creative choice may be expressed in the arrangement of known shapes.
- -Consideration of the inspiration from existing subject matter: Copyright protection is limited to identifying the author’s own creative elements.
- Consideration of «novelty»: Although copyright law does not lay down a requirement of novelty, the creation of similar or identical subject matter may constitute an indication of its low degree or even lack of originality.
- Consideration of market recognition: The display of subject matter in art exhibitions or museums is a factor external and subsequent to its creation.
Although these factors may be taken into account to assess originality, they are neither necessary nor decisive.
(3) Copyright infringement
To establish copyright infringement, a court must determine whether the original creative elements have been reproduced in a recognizable manner in the infringing subject matter. The extent of protection does further not depend on the degree of creative freedom exercised by the author.
In case of a common source of inspiration, only the reproduction of the «new», original creative elements constitutes a possible infringement of copyright. Similarly, following the same artistic trend or current is not copyright-infringing, unless specifically identifiable creative elements of that earlier work have been reproduced.
The mere possibility of similar independent creations also does not justify refusing to grant copyright protection (rather, if established, such creation would not be copyright-infringing).
(4) Foreign lense – Recent Swiss case law
The latest decision regarding works of applied art in Switzerland – a wind turbine in the shape of a tree – decided by the Cour de Justice in Geneva early 2025 (C/16983/2024 ACJC/99/2025), shows how these factors may or may not be used by courts in practice:
- The wind turbine was deemed to have an original appearance compared to other types of devices designed to produce energy;
- There was no evidence suggesting that the design was not new at the time of its creation;
- Press articles attested to the innovative character of the form chosen for a wind turbine;
- The wind turbine possesses aesthetic quality justifying its protection under copyright law, specifically due to the selection of arrangements and characteristics to achieve a harmonious result while respecting the technical necessities of the object.
It must be noted that Switzerland is not bound by the decisions of the CJEU and has a legal standard of «individuality», not «originality». Nonetheless, this case shows that Swiss (lower) courts may be more lenient in relying on aspects such as the novelty, aestheticism and market recognition of the object; all factors which are deemed either non relevant or non-decisive for the purpose of establishing originality by the CJEU.
