The cofemel decision C-683/17 and the CJEU clarification on relationship between Protection Granted by copyright law and design law

Lawyers Alessandro La Rosa

The Court of Justice of the European Union (CJEU), on 12 september 2019, issued its much awaited judgment in Cofemel, C-683/17. It ruled that, as far as designs are concerned, copyright protection may not be granted to designs on the sole ground that they produce a specific aesthetic effect.

In its Cofemel judgment, the CJEU proceeded along the very lines set by some earlier rulings such as Flos, C-168/09, in which the judges ruled that if a design is eligible for protection under the InfoSoc Directive and is, as such, original in the sense clarified by the CJEU – then Member States cannot deny such protection.


The case in analysis concerned two companies active in the sector of design, production and sale of clothing: G-Star Raw CV (“G-Star”) and Cofemel – Sociedade de Vestuario SA (“Cofemel”). G- Star accused Cofemel of producing and selling jeans, sweatshirts and T-shirts copying some of its own designs, considering that these models of clothing constituted original intellectual creations and that they should be qualified as “works” protected by copyright.

Cofemel defended itself by arguing that the said clothing models could not be qualified as “works” benefiting from such protection.

Due to persistent differences of interpretation, the Supremo Tribunal de Justiça (Portuguese Supreme Court) asked the Court of Justice whether EU law and specifically, Article 2(a) of the InfoSoc Directive prevents Member States from granting copyright protection to designs subject, because, beyond their practical purpose, they produce a specific aesthetic effect.


In order to answer the question referred, the CJEU moved from the notion of ‘work’ in Article 2(a) above mentioned, and recalled that this – like all those concepts that do not refer to the laws of individual EU Member States – is an autonomous notion of EU law, which requires uniform interpretation across the EU and presupposes the fulfilment of two cumulative elements. On one hand, according to the CJEU this notion implies that there is an original object, in the sense that it is an intellectual creation specific to its author. On the other hand, the qualification of a “work” is reserved for elements that are the expression of such a creation, and this implies that the subject matter must be expressed in a manner which makes it identifiable with sufficient precision and objectivity, even though that expression is not necessarily in permanent form. In particular, the Court notes that the aesthetic effect that can be produced by a model is the result of the intrinsically subjective sensation of beauty felt by each person who looks at it. Consequently, this subjective effect does not in itself make it possible to characterise the existence of an identifiable object with sufficient precision and objectivity.

Therefore, the circumstance that designs produce, over and above their practical purpose, a specific aesthetic effect, does not, in itself, entail that such designs can be classified as ‘works’.

In conclusion, the ECJ held that Article 2(a) of Directive 2001/29 must be interpreted as precluding national legislation from conferring copyright protection on models such as the clothing models at issue, on the ground that, beyond their utilitarian purpose, they generate a visual effect of their own which is significant from an aesthetic point of view.

The Cofemel judgment is yet another landmark ruling of the CJEU with far-reaching consequences, both for designs and other objects protected by copyright.