Fashion trends do not impact designer’s freedom: Key Issues from the CJEU Decision in Deity Shoes

As reported in our previous article on the Advocate General’s (AG) Opinion, Deity Shoes owns EU designs for various models of shoes and claimed their infringement by Mundorama Confort and Stay Design. Mundorama Confort and Stay Design counterclaimed that the contested designs are invalid, arguing that the designs are based on existing designs from which they differ only in minor aspects (customisation of the sole, laces or buckles) influenced by fashion trends. In their view, the contested designs are thus not the result of any ‘genuine design activity’, ‘intellectual effort’ or innovation.

The case was brought before the CJEU by reference for a preliminary ruling by the Juzgado de lo Mercantil n° 1 de Alicante (Commercial Court No 1, Alicante, Spain). The CJEU broke down the questions of the referring court into two issues:

• Does an EU design require a “genuine design activity” or “intellectual effort”?
• Do fashion trends limit the freedom of the designer?

The CJEU answered both question with “no”.

One of the central questions before the Court was whether, for a design to be protected under the EU regime, it must be the result of a “genuine design activity” or “intellectual effort”, in other words, whether a minimum degree of originality is required (as is the case for copyright protection).

The Court's answer is clear as was the AG's: EU design protection does not require proof of originality or creative effort. Protection is granted if the design is new and possesses individual character. The decisive factor is the appearance of the product, not the designer's creative process. The Court explicitly distinguished design protection from copyright, noting that copyright requires originality reflecting the author's personality, while design law is concerned with new and distinctive subject matter. For design protection, the design must only be sufficiently different in its overall impression from the existing design corpus, taking into account the freedom of the designer. It does not require a minimum degree of creativity on the part of the designer.

Practical implication: Businesses can obtain design protection for products that are assembled from existing components or supplier catalogues, provided the resulting design is new and creates a different overall impression on the informed user. There is no need to demonstrate a creative leap or originality in the copyright sense.

The referring court asked whether the prevalence of fashion trends in the footwear sector could restrict the designer's freedom, such that even minor differences between designs might suffice to confer individual character.

The Court clarified: Fashion trends do not limit the designer's freedom in the same way as technical or regulatory constraints. While technical constraints may necessitate certain features, fashion trends are inherently variable and do not predetermine design choices. Designers remain free to innovate or depart from prevailing trends.

The fact that certain features are common due to fashion trends does not mean that the informed user will pay less attention to them when assessing individual character.

The doctrine of inverse proportionality holds that the degree of freedom of the designer affects the threshold for individual character: the less freedom the designer has (due to technical constraints), the smaller the differences needed to create a different overall impression.

The Court confirmed: Where the designer's freedom is restricted by technical or regulatory constraints, even minor differences may suffice for a design to be considered as having individual character. However, fashion trends do not constitute such constraints.

Practical implication: The doctrine applies only where genuine constraints exist. In sectors driven by fashion, the threshold for individual character remains high, and the designer's freedom is not considered limited by trends.