CJEU: no minimal creative activity for design and the influence of fashion trends on the overall impression
24-12-2025 Print this page
Conditions for the protection of a design – Novelty – Individual character – Visual characteristics predetermined by a third party – Freedom of the designer in developing the design – Concept of ‘informed user’ – Influence of features linked to fashion trends. The owner or designer is not required to demonstrate that a design is the result of minimal creative activity. Fashion trends cannot so restrict a designer's freedom that minor differences are sufficient to create a different overall impression on the user. Features of a design resulting from fashion trends are not, in themselves, less important for the overall impression that design creates on such a user.
Case C-323/24 Deity v Mundorama
The applicant is Deity Shoes, S.L., a shoe retailer. It has filed an infringement action under Community design law against Mundorama Confort and Stay Design. These two companies are not "innovators," but rather purchase footwear in China. It has also been established that the designs claimed by Deity Shoes are modified designs based on designs offered by Chinese trading companies in their catalogs. Only a few modifications were made to these shoes before they were marketed by Deity Shoes.
Due to the limited influence that shoe retailers have on the design of the shoes they market, the referring court questions the scope of Community design protection and their ownership. The question is whether the elements of "novelty" and "individual character" are sufficient to establish ownership of a design, or whether higher requirements apply.
Preliminary questions:
(1) In order for a design to be covered by the system of protection under [Regulation No 6/2002], is it necessary for there to be a genuine design activity in such a way that the design is the result of the intellectual effort of its [designer]? In that regard, may a combination of components on the basis of models whose features of appearance are for the most part predetermined by the trading undertakings, with the effect that modifications to certain features are to be regarded as ad hoc and incidental, be regarded as a genuine design activity?
(2) In the light of the foregoing, may all or some of the feature[s] of appearance of a product resulting from the customisation of designs that are offered by Chinese trading undertakings, in accordance with those undertakings’ catalogues, be regarded as having individual character within the meaning of Article 6 of [Regulation No 6/2002], where the activity of the owner of the design is limited to marketing those designs in the [European Economic Area (EEA)] without modification or with specific modifications of components (such as soles, rivets, laces and buckles …) and the features of appearance are predetermined for the most part by the trading undertakings? In that regard, is it relevant that the components are not designed by the [owner of the design] either, but are components offered by the trading undertaking itself in its catalogue?
(3) Must Article 14 of [Regulation No 6/2002] be interpreted as meaning that a person may be regarded as the designer in relation to a design where, on the basis of a design offered by trading undertakings in accordance with a catalogue, he or she has merely customised that prior design by modifying components also offered by the trader, and those components have not been designed by the [owner of the design]? In that regard, is it necessary to prove a specified degree of customisation in order to demonstrate that the final form departs significantly from the original design and thus that authorship may be claimed?
(4) Without prejudice to the foregoing, in a case such as the present case, in view of the particular characteristics of footwear designed on the basis of trading operators’ sample books and, in so far as the “design” is limited to selecting existing designs from a sample book and, where appropriate, to varying some of their components, from those in the catalogue which the manufacturer itself (the trading undertaking) offers, all in accordance with fashion trends, must it be understood that those fashion trends: (a) restrict the designer’s freedom in such a way that minor differences between the registered (or unregistered) design and another model are sufficient to give a different overall impression or, conversely, (b) detract from the individual character of the registered (or unregistered) design with the effect that those elements or components are of less importance in the overall impression they produce on the informed user in so far as they result from known fashion trends when compared with another model?
CJEU:
1. Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs and, in particular, Articles 4 to 6 thereof, read in the light of Article 14 of that regulation, must be interpreted as meaning that, in order to enjoy the protection conferred on a Community design, the owner or designer of that design does not have to demonstrate, in addition to the existence of the conditions of novelty and individual character, that that design is the result of a minimum degree of creation.
2. Article 6 of Regulation No 6/2002 must be interpreted as meaning that, first, the fact that designs have predetermined visual characteristics provided by a model offered in a supplier’s catalogue to the designer of those designs, and that the modifications made to those designs by their designer are only ad hoc and relate to components offered by that supplier, is not in itself capable of preventing the recognition of their individual character within the meaning of that Article 6. Secondly, fashion trends are not likely to limit the degree of freedom of the designer in such a way that minor differences between one or more prior designs and the design at issue may suffice for that design to produce a different overall impression on the informed user than that produced by those prior designs and thus have an individual character. The features of a design which result from fashion trends are not likely to be of lesser importance in the overall impression they produce on such a user.
