The Cofemel case (C-683/17) was a 2019 Court of Justice of the European Union ruling that established originality as the only requirement for copyright protection of designs in the EU. The judgment removed aesthetic value requirements, ruling that fashion designs need only reflect the author’s own intellectual creation to receive copyright protection under the InfoSoc Directive.
What Is the Cofemel Case?
The Cofemel case involved Portuguese clothing company Sociedade de Vestuário SA and Dutch designer G-Star Raw CV in a dispute over copied clothing designs for jeans, sweatshirts, and t-shirts. G-Star claimed their designs qualified as original works deserving copyright protection under Portuguese law.
The Portuguese Supreme Court referred the case to the Court of Justice of the European Union in 2017, asking whether EU law permitted member states to impose requirements beyond originality for copyright protection of designs. The court delivered its judgment on September 12, 2019.
This wasn’t just another intellectual property dispute. The ruling fundamentally reshaped how 27 EU member states approach copyright protection for functional and applied art.
The Core Legal Question
At the heart of the dispute was whether member states could require clothing designs to generate a “distinctive and significant visual effect from an aesthetic viewpoint” beyond their utilitarian purpose. Portuguese copyright law demanded this aesthetic effect before granting protection.
The CJEU had to determine if national laws could set higher bars than the EU standard of “author’s own intellectual creation” established in previous cases like Infopaq.
What the Court Ruled
The CJEU held that originality alone is sufficient for copyright protection under the InfoSoc Directive (2001/29/EC). The court rejected any additional requirements for aesthetic value, artistic merit, or visual effect.
Two cumulative conditions must be met:
1. Originality: The subject matter must be the author’s own intellectual creation, reflecting their personality through free and creative choices.
2. Identifiable Expression: The work must be expressed in a manner that makes it identifiable with sufficient precision and objectivity.
The court stated that producing an aesthetic effect does not, by itself, qualify designs as protected works. What matters is whether the author made free creative choices not dictated by technical constraints.
Why This Matters for Design Protection
Before Cofemel, member states took vastly different approaches. Italy’s “Scindibilità” principle and Germany’s “Stufentheorie” both required separating artistic elements from functional ones. These approaches are now incompatible with EU law.
The judgment creates a uniform standard across Europe. Designers no longer face different copyright thresholds depending on which country’s courts hear their case.
The ruling potentially strengthens designers’ hands by making copyright protection more accessible for functional products that previously failed to meet aesthetic requirements in some jurisdictions.
The Balance Between Copyright and Design Rights
The court acknowledged a tension in its ruling. Copyright protection lasts for the author’s lifetime plus 70 years, while registered designs protect for a maximum of 25 years. Granting extensive copyright protection to designs could undermine the carefully balanced EU design system.
The CJEU noted that copyright protection “is reserved for objects worthy of qualifying as works” and cannot undermine the purposes and effectiveness of both copyright and design laws.
The court clarified that products designed around technical considerations, leaving no margin for creative freedom, lack the necessary originality to be copyright works. This limitation prevents every functional object from automatically receiving copyright protection.
How Member States Have Responded
Six years after the ruling, most EU member states have aligned their national laws with Cofemel. Luxembourg, the Netherlands, Poland, Belgium, Spain, and France have adopted Cofemel-compliant copyright regimes.
Italy remains the most significant exception. Italian courts still consider artistic value necessary for design copyright protection, with Supreme Court decisions from 2023 and 2024 maintaining this requirement. This resistance creates ongoing tension with EU law.
Sweden requested a preliminary ruling in late 2023 regarding three-dimensional works protection, suggesting courts still seek clarity on applying Cofemel principles. The Swedish Court of Appeal ruled that more original designs receive a more extensive protection scope.
Impact on Fashion Industry Practice
Despite predictions that Cofemel would radically shift the fashion industry toward copyright over design rights, empirical analysis shows design registrations continued growing steadily post-Cofemel.
EUIPO data shows Registered Community Design filings experienced 3.5 percent average annual growth between 2010 and 2019, with 36.2 percent overall growth. The fashion industry still values design registration.
Why do designers continue registering designs despite easier copyright access? Registered designs don’t require proving derivation in infringement cases, making them more appealing when the sole purpose is protection against imitation.
The UK Position Post-Brexit
The UK implemented the InfoSoc Directive in 2002, but has not aligned with Cofemel since Brexit. UK courts acknowledge the divergence between UK and EU approaches, with a 2024 case finding a rowing machine lacked copyright protection due to insufficient artistic intent.
The English Supreme Court’s 2011 Lucasfilm decision held that functionally-purposed objects like film prop helmets cannot enjoy copyright protection as artistic works. How this precedent squares with Cofemel principles remains unresolved in UK law.
Practical Implications for Designers
What should fashion designers and product creators know?
Copyright protection became more accessible: Designs meeting the originality threshold can receive copyright protection without proving artistic merit.
Technical constraints matter: Designs dictated by technical considerations preventing creative freedom remain ineligible. Functional elements must not predominate over artistic elements to the point where creativity becomes irrelevant.
Dual protection is possible: Designs can enjoy both copyright and design right protection, though concurrent protection applies only in certain situations.
Litigation strategy shifts: Copyright claims for designs are now more viable across most EU jurisdictions, though proving originality through free creative choices remains essential.
Criticisms and Concerns
Critics argue Cofemel devalues copyright by extending protection to banal objects, restricts competition by lengthening protection terms to life plus 70 years, and creates legal uncertainty about whether expired designs remain copyright-protected.
The lack of a copyright registry means competitors cannot easily determine if a design whose registration has expired still enjoys copyright protection. This uncertainty complicates market entry for new designers.
Some scholars suggest the CJEU lowered the originality threshold to accommodate full cumulation, requiring only “any degree of freedom in aesthetic design,” even if marginal or highly restricted by functional requirements.
Looking Forward
The Advocate General’s 2023 Opinion in the Mio case reaffirmed that originality is the sole requirement but emphasized rigorous application of originality criteria to maintain balance with EU design law.
National courts will shape how Cofemel applies in practice. The test isn’t whether a design looks beautiful or artistic. The question is whether the designer made free creative choices reflecting their personality.
Six years on, Cofemel has harmonized the legal framework while leaving room for courts to interpret what constitutes sufficient originality. The fashion industry adapted by continuing to value both copyright and design protection for different strategic purposes.
For designers, the message is clear: originality matters more than artistic value. Your creative choices must be free, not dictated by function. Meet that standard, and copyright protection follows across most of Europe.