Creating a visually appealing object is no longer sufficient – it must be demonstrated that its appearance results from original creative choices. This, in essence, is the practical lesson that businesses operating in design-oriented sectors must draw from the Court of Justice of the European Union’s judgment of 4 December 2025 in the joined Mio/konektra cases. This is a ruling that redefines the conditions for copyright protection of industrial design and which, for Italian businesses, calls for a rethink of protection strategies.
Dual protection under Italian law: an already complex landscape
To understand the scope of this development, we must begin with the relevant legal framework. The relationship between design protection and copyright has always been conflicting. The two systems operate on different principles: the former concerns the appearance of a product or a part thereof and is subject to requirements such as novelty and individual character. Copyright, on the other hand, protects original works as the intellectual creations of their authors, with a significantly longer term of protection.
Italian law allows for cumulative protection under both frameworks: Article 2(10) of the Copyright Act grants such protection to works of industrial design that possess creative character and artistic value. Creativity exists where the work represents the expression of the author’s personal imprint, while artistic value is understood as a particular aesthetic or cultural merit, capable of making the work appreciable by the public as a personal and original artistic expression. Over time, explicit and unanimous recognition by critics, cultural institutions and museums has become a significant indicator for the purposes of protectability.
In the disputes handled by the Firm, this approach has required the detailed documentation of the designers’ reputation and of the recognition enjoyed by their works in cultural and social circles: expert opinions from leading academics and professionals, references in industry publications and monographs, museum exhibitions and association with high-profile contexts. All these elements aim to demonstrate that the products could be considered among the finest expressions of Italian design culture.
The difficult dialogue with the Court of Justice
This approach has come into increasing conflict with the development of European case law. In the Cofemel and Brompton Bicycle judgments, the Court of Justice had already established that originality was the sole substantive condition for classifying an object as a work protected by copyright, without requiring any additional aesthetic or qualitative requirements. Italian case law, however, has continued to adopt a more cautious approach, reiterating the need for objectively recognisable artistic value. This dialogue between legal systems has yet to reach a definitive conclusion.
The Mio/konektra judgement has accentuated this tension. The Court reiterated that originality is the sole substantive condition for copyright protection and expressly rejected the idea that applied art must satisfy more rigorous or additional requirements, of a qualitative or aesthetic nature, compared to the general criterion. There remains only one decisive test: whether the work constitutes the author’s own intellectual creation. Furthermore, the judgement clarified that judges are required to focus on the appearance of the object in which the author’s free and creative choices are expressed, rather than on the designer’s intentions or the narrative of the creative process. External factors such as commercial success, professional recognition or being exhibited in a museum may serve as evidence, but they are neither necessary nor decisive for the purposes of establishing originality.
The practical implications for businesses
The framework established by the judgement places Italian businesses in a particularly delicate position. Although the European standard is formally centred on originality as the sole substantive requirement, the continued presence in Italian law of the criterion of ‘artistic value’ is likely to continue to shape litigation strategies and risk assessments. Legislative action may ultimately prove necessary to bring Article 2(10) of the Copyright Act into line with the concept of ‘work’ as defined by the Court of Justice. However, the experience following the Cofemel and Brompton Bicycle cases suggests that formal interventions alone may not suffice: national courts may continue, at least in the short to medium term, to interpret the requirement of originality through indicators traditionally associated with ‘artistic value’: public recognition, critical acclaim and cultural accreditation.
For businesses, the framework outlined by the judgement suggests a two-pronged strategic approach. On the one hand, it is necessary to continue investing in the cultural recognition of one’s products through exhibitions, publications and premium positioning; on the other, by structuring and preserving documentation of the creative process, including sketches, variations and design notes.
In short, the Mio/konektra ruling does not change the way we design. It changes the way we prepare to defend what we have designed.
