Design right copyright in utilitarian products

Utilitarian Products: copyright or design rights – clarification by the CJEU from questions referred by the courts in Germany (USM U. Schärer Söhne v Konektra GmbHand Sweden (Galleri Mikael & Thomas Asplund v Mio AB).

In the UK, whilst design right and copyright can subsist in the same article, for example the original shape of a teapot might attract unregistered design right whilst the pattern applied to it might attract copyright, the law has distinguished between artistic works and commercial designs.   A work that is created, broadly speaking, for functional use, will attract design right whilst an artistic work (a book, piece of music or sculpture) will attract copyright.  Broadly, the distinction acknowledges that whilst it is appropriate that a unique creative work should enjoy copyright protection for the life of the author plus 70 years, this is not appropriate in the world of industrial/commercial design where design is expected to evolve more rapidly and to do so on the back of the existing design corpus.  Design rights last for a much shorter period of time, usually 3-10 years, unless the design is registered in which case protection can last for up to 25 years.

The exception to this position in the UK is that some designs are seen as falling into the category of works of artistic craftsmanship under the Copyright Designs and Patents Act 1988 (CDPA 1988).  However, the UK courts have not agreed on a test as to whether a work of craftsmanship, such as a piece of furniture, might be considered artistic, and so a “list” approach has been taken.  It has been suggested that the following might constitute works of artistic craftsmanship: hand-painted tiles, stained glass, wrought iron gates, and the products of high class printing, bookbinding, cutlery, needlework, cabinet-making and original jewellery.  If a work is considered a work of artistic craftsmanship it will enjoy copyright protection for the life of the author plus 70 years.

The position taken by the CJEU relating to works created in the EU has diverged from the UK’s position in recent years.  Under the EU’s copyright laws, a work, in order to attract copyright, must be original and reflect the author’s personality and free creative choices.  This has opened the door to a wide range of what would otherwise be considered works of design, being accorded copyright protection.

In the UK, the High Court has recently affirmed in WaterRower (UK) Ltd v Liking Ltd (T/A Topiom) that whilst the subject of the case, a wooden rowing machine, qualifies as an original work within the meaning of the InfoSoc Directive 2001/29/EC, as it reflects the creator’s personality and free creative choices (and would attract copyright), it does not do so under the CDPA 1988. This has confirmed that the UK will continue with its historical distinction between industrial/commercial designs and artistic works.

The Mio and USM cases, decided by the CJEU in December 2025, both concern furniture.  The CJEU, in considering the questions referred to it, has clarified that provided works are original and reflect the free and creative choices of the craftsperson, they will attract copyright.  The CJEU acknowledged that technical constraints might mean that the designer has little freedom and it is here that applied art (industrial design) differs from other categories of works.  It is clear however that a designer seeking inspiration from vintage designs (in which design right has almost certainly expired) will have to consider where they were created and whether they might still enjoy copyright protection under EU law.

Innovation in design can be incremental, and as such, design rights play a real and practical role in allowing designers and companies creating original designs to enjoy a period of exclusivity whilst enabling timely improvements in design.  By allowing these types of products to attract lengthy periods of copyright protection, this process could be stifled.