USM Haller II – Copyright protection for a furniture system? Maybe!

[Marcel Pemsel]

USM Haller II – Copyright protection for a furniture system? Maybe!

Marcel Pemsel Thursday, July 23, 2026 - copyright, Marcel Pemsel, MIO, originality, USM Haller, works of applied art

After the Court of Justice of the EU (“CJEU”) gave guidance on the question whether the USM Haller furniture system can be protected by copyright in Mio and Others (joined cases C‑580/23 and C‑795/23; IPKat here, here, here and here), it was time for the German Supreme Court (“GSC”) to give its ruling in USM Haller II (I ZR 96/22). Spoiler alert: It did not decide whether the furniture enjoys copyright protection.

Background

The plaintiff produces the modular furniture system that it has marketed for decades under the trademark “USM Haller”. In this system, highly polished chrome-plated tubular elements are joined together by means of spherical connector nodes to form a frame structure. Metal panels in various colours can be inserted into the frame. The resulting units can be combined as desired and mounted above, below or alongside one another. A picture is worth a thousand words, so here is an example of a piece of furniture from the system. 

 

The defendant, Konektra, initially offered spare and extension components for the USM Haller furniture system (to which USM Haller did not object) and started to list all components necessary to assemble complete USM Haller furniture units in 2017/2018 (to which USM Haller strongly objected).  

USM Haller sued Konektra and invoked copyright infringement as well as, in the alternative, violation of unfair competition law.

The District Court of Düsseldorf upheld the copyright claim. The Higher Regional Court dismissed the copyright claim but granted claims based on unfair competition law. USM Haller was dissatisfied and appealed to the GSC. The latter referred several questions to the CJEU, which were answered in Mio and Others. Now it was time for the GSC to apply the CJEU’s ruling.

The German Supreme Court's decision

The judges upheld USM Haller’s appeal and remitted the case back to the Higher Regional Court.

1. The Court criticized the lower court’s rejection of copyright protection for the furniture system as a work of applied art. It reiterated the CJEU’s case law on the conditions of protection:

First, the subject matter must be original in the sense that it is the author’s own intellectual creation. An object is original if it reflects the personality of its author by expressing the author’s free and creative choices. This cannot be assumed where the creation of the object was dictated by technical considerations, rules or other constraints that left no room for artistic freedom.

Second, classification as a work is reserved for elements that express such an intellectual creation, which was not an issue here.

a. The Court took issue with the lower court’s consideration that, according to Cofemel (IPKat here), copyright protection for works of applied art must be the exception in light of the possibility of design protection. If the lower court intended to say that the conditions for protection of works of applied art are stricter than for other works, the lower court would be wrong. As the CJEU held in Mio and Others, they are no different than for other categories of works.

The judges understand the statement in Cofemel that concurrent protection can be envisaged only in certain situations to be a descriptive and not a normative statement, meaning that factually, one and the same product will more likely be protected by design law than by copyright because the threshold for copyright protection is higher.

b. The Higher Regional Court took the author’s subjective perspective into account when assessing originality. The judges pointed to the GSC’s consistent case law as well as Mio and Others, where the CJEU excluded subjective elements from the assessment of originality.

c. The judges also criticised that the lower court did not consider the presentation of the design in art exhibitions or museums and its recognition within professional circles when assessing whether the furniture system constitutes the author’s own intellectual creation.  

The attention a work has received within specialist circles and among the wider public may constitute an indication of its originality; likewise, the presentation of a work in art museums and exhibitions may demonstrate that those with an appreciation of art regard it as an artistic achievement deserving of copyright protection. However, the Court makes two important caveats: (1) These circumstances are just indicators of creativity and (2) they are no indicators of creativity where the work was recognised solely for its novelty, its technical achievement or its exceptional utility value.

The judges found this case law compliant with the CJEU’s preliminary ruling. While the CJEU has held that external circumstances arising after the creation of a product, such as the presentation of the object in exhibitions or museums or its recognition within specialist circles, are neither necessary nor decisive in establishing that it is an original creation and therefore entitled to copyright protection (in para. 81 of Mio and Others), the CJEU did not hold that such circumstances are incapable of constituting evidence of an object’s originality.

d. Finally, the judges criticised the Higher Regional Court’s finding, based on CJEU case law, that the aesthetic effect of a design, taken in itself, does not give rise to copyright protection. The aesthetics of a design reveal nothing as to whether it is based on free and creative choices.

The judges were dissatisfied with this reasoning. The lower court should have considered whether the aesthetic effect of USM Haller’s furniture system was based on a creative decision. The CJEU has pointed out that aesthetic considerations may form part of the creative process (paras. 67 and 68 of Mio and Others). The aesthetic effect of a design can justify copyright protection to the extent that it results from, and gives expression to, an artistic achievement, namely free and creative choices.

2. For the aforementioned reasons, the judges lifted the lower court’s decision and remitted the case but not without providing guidance for the new decision the Higher Regional Court will have to take. Most of them reiterate the Mio and Others decision but a few are noteworthy:

a. With respect to copyright infringement, the CJEU held that the creative elements of the protected work must be reproduced in a recognisable form in the allegedly infringing subject matter. This assessment does not depend on the overall impression produced by the work and the contested subject matter.

Despite this case law, the judges require the lower court to consider the overall impression of the contested furniture. It may not only focus on the copyright-protected elements that have been taken from the earlier work and incorporated into the new design. The Court justifies this finding by arguing that the CJEU required an assessment of whether the appropriated elements are recognisable in the allegedly infringing subject matter. The judges inferred that if only the appropriated elements were considered in isolation, they would invariably remain recognisable where they had been reproduced without alteration, and copyright infringement could therefore be found even where, in the overall impression, those elements are no longer recognisable.

b. The Court also took issue with the CJEU’s statement that the scope of copyright protection afforded to a work does not depend on the degree of creative freedom exercised by its author.

The judges held that the question whether the creative elements incorporated into a new design remain recognisable also depends on the level of originality of the work concerned. The Court relied on practical experience rather than a normative rule: a copyright-protected work possessing a particularly high level of originality and, consequently, considerable expressive force because it reflects its author’s personality especially clearly, will in practice be more readily recognisable when incorporated into a new design than a work of lesser originality that has been incorporated in the same manner.

Thus, with respect to works of applied art, the limitation of the author’s scope for free and creative choices arising from the need to fulfil the product’s functional purpose may result in a low level of originality of the work or of a part thereof and thus – de facto – in a narrow scope of protection, which may in some circumstances be confined to an (almost) identical reproduction.

Comment

The GSC leaves the most important question unresolved, namely whether the USM Haller furniture system is protected by copyright.

The protection standard is probably one of the hardest to apply in IP law because it could not be vaguer and more subject to arbitrary decisions. How is a furniture system supposed to express the personality of its creator? Psychologists who create a personality profile of the author might not be able to answer this question, so how should lawyers be able to do this?

Let us see how the Higher Regional Court of Düsseldorf will handle the case.