EU Court Clarifies Design Protection Rules: Creativity Not Required, Trends Do Not Limit Designer Freedom
On 18 December 2025, the Court of Justice of the European Union (“CJEU”) delivered its judgment in Case C323/24, Deity Shoes v Mundorama Confort and Stay Design, addressing a fundamental question in EU design law: must a design involve genuine creative effort to qualify for protection? The case also raised a second issue particularly relevant for the fashion industry, that is, whether fashion trends limit the designer’s freedom when assessing individual character.
The Court’s answer to both questions was clear. EU design protection does not require originality or creative effort, and fashion trends do not reduce the designer’s freedom in the assessment of individual character. These findings reinforce the objective nature of EU design protection and clarify its relationship with copyright law.
The dispute: catalogue designs and footwear models
Deity Shoes owned several registered and unregistered EU designs for shoe models and brought infringement proceedings against competitors Mundorama Confort and Stay Design.
However, the defendants counterclaimed for invalidity of those designs. Their main argument was that the contested designs lacked novelty and individual character because they were largely based on models offered in supplier catalogues, particularly from Chinese manufacturers. The modifications made by Deity Shoes, such as changing colours, materials, laces or buckles, were allegedly minor and incidental.
The referring Spanish court therefore asked whether such designs could still qualify for protection under Regulation (EC) No 6/2002 (the “Community Design Regulation”, amended by Regulation (EU) 2024/2822). More specifically, it questioned (i) whether EU design protection requires genuine design activity or intellectual effort, (ii) whether customising catalogue components can produce a design with individual character, and (iii) whether fashion trends restrict the freedom of the designer, potentially lowering the threshold for individual character.
The Court’s answer: no originality requirement
The CJEU confirmed that Community design protection depends only on two conditions: novelty and individual character. There is no additional requirement of creativity or intellectual effort. In other words, a design can be protected even if it is created through the selection and combination of pre-existing elements, provided the final appearance produces a different overall impression from prior designs.
This conclusion follows the structure of the Community Design Regulation which focuses on the appearance of a product rather than the creative process behind it. The decisive question is therefore not how the design was produced, but whether it appears new and distinctive to the informed user from the existing design corpus.
The Court also emphasised the difference between design law and copyright law. While copyright requires originality reflecting the author’s personality, design law protects new and distinctive product appearances that may be functional and mass-produced. Consequently, the absence of significant creative effort does not prevent design protection.
Catalogue components and individual character
The Court also rejected the argument that designs based on supplier catalogues cannot have individual character. According to the CJEU, the relevant assessment concerns the overall impression produced by the design compared with earlier designs. The fact that individual components originate from catalogues does not automatically negate individual character.
This reflects a practical understanding of modern manufacturing. Many industries, including footwear, furniture and consumer goods, rely heavily on modular production systems, where companies assemble products from pre existing parts. Under the Court’s reasoning, the combination and arrangement of these components may still produce a design that differs sufficiently from prior designs to merit protection.
However, this does not mean that all catalogue-based designs will be valid. The national court must still determine whether the resulting design creates a different overall impression on the informed user.
Fashion trends and the freedom of the designer
Perhaps the most interesting question in this judgment concerned the role of fashion trends. The referring court suggested that trends might limit the designer’s freedom in the same way as technical constraints. If that were the case, only small differences between designs might suffice to create individual character. The CJEU rejected this argument. Unlike technical or regulatory constraints, trends are not inevitable or permanent. Designers remain free to depart from them or develop new trends.
The Court also rejected the suggestion that trend-driven features should carry less weight in the overall impression. The informed user, who is knowledgeable about the sector, remains attentive to such elements when comparing designs.
Critical reflections
The Court’s refusal to treat fashion trends as limiting design freedom preserves the integrity of the individual character test. Yet, at the same time, this decision might be seen as detached from industry practice. The Court reasoned that trends are neither permanent nor inevitable, and therefore cannot function as constraints comparable to technical requirements. However, in industries such as fashion or footwear, economic and commercial pressures strongly encourage designers to follow prevailing trends. Designers may theoretically be free to depart from them, but doing so could significantly reduce the commercial viability of the product.
From this perspective, trends might reasonably be understood as practical constraints on design choices, even if they are not legal or technical constraints. By refusing to recognise this reality, the Court maintains a strict doctrinal approach but arguably overlooks the market dynamics shaping decisions by designers.
Additionally, whilst the Court correctly noted that design protection focuses on the appearance of the final product, rather than the creative process used to generate it, the judgment arguably underestimates the implications of modern global supply chains, where many products are assembled from standardised components offered by manufacturers. In practice, multiple companies may rely on the same supplier catalogues, meaning that visually similar products can easily emerge across the market. By allowing protection for designs derived largely from catalogue elements, the Court risks granting exclusive rights over configurations that may already be widely available within the manufacturing ecosystem. This may complicate the assessment of the prior design corpus and could increase litigation over relatively minor differences between products.
Finally, the judgment once again relies heavily on the concept of the “informed user”, which remains one of the most debated aspects of EU design law. The Court reaffirmed that the informed user is particularly observant and knowledgeable about the relevant sector, and therefore capable of detecting differences between designs. However, the concept continues to suffer from practical ambiguity. It is neither a technical expert nor an average consumer, leaving courts with significant discretion when determining how such a user would perceive competing designs. This lack of precision can lead to inconsistent judicial assessments, particularly in industries characterised by subtle aesthetic differences. The Deity Shoes judgment therefore illustrates the continued reliance on an analytical concept that remains difficult to apply consistently in practice.
Ultimately, the judgment reinforces the objective nature of EU design law. Protection is determined by the appearance of the product, not the designer’s creative process. In doing so, it preserves the flexibility of the EU design system while maintaining a clear distinction between design law and copyright.
Disclaimer: Ganado Advocates is responsible for contributing to this law report but was not in any way involved as legal advisor for the parties in the judgement being covered in this law report. This article was first published in ‘the Independent’ on 18/03/2026.
