Do Trends Kill Originality? The CJEU Issues Judgment in Deity Shoes, Case C-323/24

[Kliment Markov]

Do Trends Kill Originality? The CJEU Issues Judgment in Deity Shoes, Case C-323/24

 Kliment Markov Thursday, January 08, 2026 - C-323/24, CJEU, Community design, copyright, Kliment Markov,preliminary ruling

These boots are made for walkin’, and that’s just what they’ll do. With this line from Nancy Sinatra’s famous song, Advocate General Emiliou opened his Opinion in Deity Shoes (C-323/24), as a prelude to the recent Judgment of the Court of Justice of the European Union (CJEU). 

The case arose from a request for a preliminary ruling on the interpretation of EU design law, in particular whether design protection requires some form of an intellectual effort or design activity on the part of the designer, and how fashion trends are to be taken into account when assessing individual character. Now that the CJEU has handed down its judgment, it is time to lace up our shoes and walk through the preliminary ruling we all anticipated.

Contemplating fashion trends

In a previous post, Marcel Pemcel discussed the request for a preliminary ruling from Commercial Court No 1, Alicante, and its factual background (IPKat here). In brief: Deity Shoes, S.L. brought an infringement action against Mundorama Confort, S.L. and Stay Design, S.L. based on registered and unregistered Community designs for several models of shoes. The defendants counterclaimed for invalidity of the registered designs, citing lack of novelty and individual character. The referring court observed that the visual characteristics of Deity Shoes’ models were, for the most part, predetermined by suppliers’ catalogue models and that any changes made were ad hoc and incidental, using components offered in those catalogues. Operating in a sector where price and volume are decisive, Deity Shoes had little incentive to make substantial modifications, and the designs follow known fashion trends to enable large‑scale, low‑price marketing in the EU.

Against this background, the referring court entertained doubts as to the correct interpretation of Regulation No 6/2002 (Community Design Regulation). It stayed the proceedings and referred a number of questions to the CJEU. In essence, the Commercial Court No 1, Alicante, asked whether, for a design to fall within the system of protection established by the Community Design Regulation, there must be a genuine design activity such that the design is the result of the intellectual effort of its designer, in particular where it results from the combination or customisation of components offered by trading undertakings. The referring court also asked whether such features of appearance may confer individual character, whether a person may be regarded as the designer where they merely customise pre-existing designs or components not designed by them, and, finally, how fashion trends affect the designer’s freedom and the overall impression of the design in the assessment of individual character.

In complete alignment with Advocate General’s opinion, the CJEU ruled that protection under Community design law depends only on novelty and individual character, and does not require any “genuine design activity”, intellectual effort, or minimum degree of creativity. A design may therefore be protected even if it is based on supplier catalogues and involves only limited customisation, provided it produces a different overall impression on the informed user. Regarding the fashion trends part, the CJEU ruled that they do not limit the designer’s freedom and that features resulting from fashion trends are not, by themselves, likely to weigh less heavily in the overall impression they produce on the informed user.

With this, the CJEU’s judgment completely dovetailed into the line of established case law. First, as Cofemel (C-683/17) emphasises, the purpose of design protection is fundamentally different from that of copyright. It aims to safeguard functional, mass-producible subject matter that is new and distinctive, for a limited time sufficient to ensure a return on investment, without unduly restricting competition. In contrast, copyright protection, which lasts significantly longer, is reserved for subject matter that qualifies as works and reflects creative expression.

Second, this case presented an opportunity for the CJEU to confirm the General Court’s trend‑indifferent approach developed in Communications equipment (T‑153/08) and Antrax It v OHIM (T‑83/11 and T‑84/11). According to it, the existence of a general design trend is irrelevant when assessing the limits of the designer’s freedom, since it is precisely that freedom which allows designers to discover new shapes and new trends or even to innovate in the context of an existing trend.

Final thoughts

Ironically enough, the fact that EU lawmakers did not use “originality” as a term in the design law framework, reflected in almost all official translations, could not prevent the conflation with copyright in the request for a preliminary ruling. Finding no room for assessments based on “genuine design activity” in Community design law (now EU design law), therefore, comes as no surprise. There is no legal basis to support it. The same applies to the relevance of fashion trends in the individual character assessment. Fashion trends alone have no legal grounds to enjoy special treatment. The causal chain remains unchallenged: if a designer chooses to follow a trend, this will limit how different the design can appear from earlier designs and most likely narrow the scope of protection, if not invalidate the design altogether. Trends do kill originality.

Photo by Ozan Buğra Kaya via Pexels

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