Opinion of the Advocate General — ECLI:EU:C:2025:330
Date: 2025-05-08
Language of the case: German;Swedish
Procedure: Reference for a preliminary ruling
Origin: Germany;Sweden

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
21 September 2023 
Referring court:  
Svea hovrätt, Patent- och marknadsöverdomstolen (Sweden) 
Date of the decision to refer: 
20 September 2023 
Applicants: 
Mio AB 
Mio e-handel AB 
Mio Försäljning AB 
Defendant: 
Galleri Mikael & Thomas Asplund Aktiebolag 
  
Subject matter of the main proceedings 
Infringement of copyright 
Subject matter and legal basis of the request 
Request pursuant to Article 267 TFEU for an interpretation of Articles 2 to 4 of 
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 
2001 on the harmonisation of certain aspects of copyright and related rights in the 
information society 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-580/23 
 
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Questions referred for a preliminary ruling 
1. In the assessment of whether a subject-matter of applied art merits the far-
reaching protection of copyright as a work within the meaning of Articles 2 to 4 of 
Directive 2001/29/EC, how should the examination be carried out – and which 
factors must or should be taken into account – in the question of whether the 
subject-matter reflects the author’s personality by giving expression to his or her 
free and creative choices? In that regard, the question is in particular whether the 
examination of originality should focus on factors surrounding the creative 
process and the author’s explanation of the actual choices that he or she made in 
the creation of the subject-matter or on factors relating to the subject-matter itself 
and the end result of the creative process and whether the subject-matter itself 
gives expression to artistic effect. 
2. For the answer to Question 1 and the question of whether a subject-matter of 
applied art reflects the author’s personality by giving expression to his or her free 
and creative choices, what is the significance of the facts that 
(a) the subject-matter consists of elements that are found in common designs? 
(b) the subject-matter builds on and constitutes a variation of an earlier known 
design or an ongoing design trend? 
(c) identical or similar subject-matter has been created before or – 
independently and without knowing whether the subject-matter of applied art for 
which protection as a work is claimed – after the creation of the subject-matter in 
question? 
3. How should the assessment of similarity be carried out – and what similarity 
is required – in the examination of whether an allegedly infringing subject-matter 
of applied art is covered by a work’s scope of protection and infringes the 
exclusive right to the work which, according to Articles 2 to 4 of Directive 
2001/29/EC, must be conferred on the author? In that regard, the question is in 
particular whether the examination should focus on whether the work is 
recognisable in the allegedly infringing subject-matter or on whether the allegedly 
infringing subject-matter creates the same overall impression as the work, or what 
else the examination should focus on. 
4. For the answer to Question 3 and the question of whether an allegedly 
infringing subject-matter of applied art is covered by a work’s scope of protection 
and infringes the exclusive right to the work, what is the significance of 
(a) the degree of originality of the work for the scope of the work’s protection? 
(b) the fact that the work and the allegedly infringing subject-matter of applied 
art consist of elements found in common designs or build on and constitute 
variations of earlier known designs or an ongoing design trend? 
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(c) the fact that other identical or similar subject-matter has been created before 
or – independently and without knowledge of the work – after the creation of the 
work? 
Provisions of European Union law relied on 
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 
2001 on the harmonisation of certain aspects of copyright and related rights in the 
information society, Articles 2 to 4 
Provisions of national law relied on 
Lagen (1960:729) om upphovsrätt till litterära och konstnärliga verk (Law 
1960:729 on copyright in literary and artistic works) 
According to Paragraph 1, the person who has created a literary or artistic work 
has copyright to that work, irrespective of whether it is 
1. a fictional or descriptive representation in written or spoken form, 
2. a computer programme, 
3. a musical or staged work, 
4. a cinematographic work, 
5. a photographic work or any other work of visual art, 
6. a work of architecture or applied art, or 
7. a work that has been given expression in any other way. 
According to Paragraph 2, copyright includes, subject to certain limitations, the 
exclusive right to dispose of the work by producing copies of it and by making it 
available to the public, in its original or amended form, in translation or 
adaptation, in another literary or artistic form or in another technique. The 
production of copies includes any direct or indirect, temporary or permanent 
production of a work, by any means and in any form, in whole or in part. The 
work is made available to the public, inter alia, when the work is transmitted to 
the public or when copies of the work are offered for sale, rental or on loan or 
otherwise distributed to the public. 
According to Paragraph 53(b), a court may prohibit, on pain of a penalty, a person 
who takes, or participates in, a measure infringing copyright from continuing that 
measure. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-580/23 
 
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Succinct presentation of the facts and procedure in the main proceedings 
1 The parties to the proceedings are Galleri Mikael & Thomas Asplund Aktiebolag 
(‘Asplund’), on the one hand, and Mio AB, Mio e-handel AB and Mio Försäljning 
AB (together, ‘Mio’), on the other. Asplund manufactures and designs various 
interior decoration products and items of furniture. Mio engages in retail trade in 
the furniture and home decoration sector. 
2 Asplund’s range includes dining tables in the Palais Royal furniture series (the 
‘Palais tables’), an image of which is below. 
 
3 Mio’s range includes dining tables in the Cord furniture series (the ‘Cord tables’). 
4 In October 2021, Asplund brought an action before the Patent- och 
marknadsdomstolen (Patent and Market Court) against Mio for copyright 
infringement. In that case, Asplund claimed, inter alia, that the Patent and Market 
Court should prohibit Mio, on pain of a penalty, from manufacturing, marketing 
or selling the Cord tables. Mio contested the action brought by Asplund. 
5 The Patent- och marknadsdomstolen upheld the action brought by Asplund. It 
ruled that the Palais tables were protected by copyright as a work of applied art 
and that Mio’s Cord tables infringed the Palais tables’ copyright protection. 
6 Mio lodged an appeal against the judgment of the Patent and Market Court and 
claimed that the Patent- och marknadsöverdomstolen (Patents and Market Court 
of Appeal) should dismiss the action brought by Alspund. In the proceedings 
before the Patent- och marknadsöverdomstolen, questions arose concerning the 
interpretation of Directive 2001/29/EC of the European Parliament and of the 
MIO AND OTHERS 
 
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Council of 22 May 2001 on the harmonisation of certain aspects of copyright and 
related rights in the information society. 
The essential arguments of the parties 
7 Asplund has claimed, in essence, the following. The Palais tables are works of 
applied art and are protected by copyright as works. Mio’s Cord tables exhibit 
strong similarities to the Palais tables and fall within the scope of protection 
afforded to the Palais tables. By producing copies of the Cord tables and making 
them available to the public, therefore, Mio thus infringed Asplund’s copyright to 
the Palais tables. 
8 Mio has contended, in essence, the following. The Palais tables are not protected 
by copyright. The tables lack sufficient originality to enjoy copyright protection. 
The design of the Palais tables is attributable largely to functional and production 
engineering considerations. The Palais tables are based on simple variations of 
common designs and are devoid of originality. If the Palais tables are deemed 
eligible for copyright protection, the scope of protection is, in any event, limited 
and very narrow given the limited degree of originality. The differences between 
the tables are sufficient for the Cord tables to fall outside the scope of any 
protection afforded to the Palais tables. In any event, the Cord tables are not 
imitations of the Palais tables. The Cord tables have been produced independently 
by Mio with inspiration from its own earlier designs and an international trend 
with round shapes and wooden rods or rods in other materials. 
Succinct presentation of the reasons for the request for a preliminary ruling 
The question whether a subject-matter of applied art has the requisite originality 
to merit protection as a work 
9 The case concerns subject-matter of applied art in the form of tables. A central 
question in the case is whether the Palais tables, as subject-matter of applied art, 
enjoy copyright as artistic works. The question of whether the tables should be 
afforded protection as works within the meaning of Directive 2001/29/EC must be 
determined on the basis of the criteria for assessment laid down by the Court of 
Justice in its case-law (see judgment of 12 September 2019, Cofemel, C-683/17, 
EU:C:2019:721, paragraphs 29 to 31 and 50, and judgment of 11 June 2020, 
Brompton Bicycle, C-833/18, EU:C:2020:461, paragraphs 23 to 26 and 37). 
10 In the view of the Patent- och marknadsöverdomstolen, however, it is not clear 
how the Court of Justice’s rulings regarding the originality of a work – that the 
subject-matter give expression to the author’s free and creative choices – should 
be interpreted and applied. More specifically, there is definitely still unclarity as to 
how the concrete assessment should be conducted – and which factors must or 
should be taken into account – in the question of whether a subject-matter of 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-580/23 
 
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applied art reflects the author’s personality by giving expression to his or her free 
and creative choices. 
11 One interpretation, on the one hand, could be that it is sufficient that the author 
have had scope and have in fact made different kinds of choices in the creation of 
the subject-matter, that those choices not be dictated by technical considerations, 
rules or constraints, and that the choices be somehow reflected and expressed in 
the subject-matter. Such a broad interpretation would thus mean in practice that 
the starting point of the assessment is the creative process itself and the choices 
that the author has made in that process. It would also mean that, in principle, all 
the choices made by the author in the creative process that are not dictated by 
technical considerations, rules or constraints would be considered free and 
creative. 
12 Such an interpretation, based on the actual choices that the author has made in the 
creation of the subject-matter, could mean that the court’s examination of 
originality focuses on the creative process and that the author has made choices in 
that process, rather than whether the subject-matter itself – or the end result of the 
creative process – actually gives expression to an artistic effort. The question 
whether the subject-matter displays sufficient originality would thereby become a 
matter of evidence rather than a matter of law. 
13 If the interpretation of the originality requirement were limited in that way, it 
would probably mean that relatively low requirements would be placed on the 
creative and free choices that the author needs to have made and to which a 
subject-matter of applied art must give expression. That, in turn, would risk 
leading to even subject-matter which might not merit classification as works being 
granted copyright protection. Furthermore, it could lead to simple subject-matter 
which has not been created with an artistic purpose in the first place – or in any 
event do not possess individual artistic character – being protected as works. 
14 If relatively simple subject-matter, which can in many cases still be of high 
commercial value, were to receive the generous protection offered by copyright, 
there would be a risk of negative consequences for competition and innovation. A 
low requirement on originality would also risk reducing compliance with 
copyright as such. 
15 A further consequence of a low originality requirement for subject-matter of 
applied art is that it would risk undermining the importance of the less generous 
protection for designs. In that respect, the question might also be asked how a low 
requirement of originality for subject-matter of applied art would relate to the 
requirement of individual character required to obtain protection for designs. 
Although copyright and design law have different objectives, it does not appear to 
be a reasonable and desirable arrangement for a design to be eligible for copyright 
protection as a work when it is not sufficiently individual to receive protection as 
a design. As the Court of Justice has held, although the protection of designs and 
the protection associated with copyright may be granted cumulatively to the same 
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subject-matter of applied art, that concurrent protection can be envisaged only in 
certain situations (see judgment in Cofemel, paragraph 52). An originality 
requirement that was set too low, however, would instead risk leading to subject-
matter of applied art being able to receive dual protection in the majority of cases. 
In such circumstances, which function design protection should perform within 
EU law may be questioned. 
16 Another interpretation, on the other hand, could be that the starting point of 
assessment as to whether the subject-matter of applied art reflects the personality 
of the author, by giving expression to his or her free and creative choices, should 
be the work itself; the subject-matter itself must reflect the author’s personality 
and exhibit a degree of artistry or possess what has been referred to – at least in 
the past – as ‘originality’ in Sweden and Germany, among others. An assessment 
according to that interpretation could mean that the subject-matter must have a 
certain individual character and be somewhat unique. Or, to put it another way, it 
must be a subject-matter which has risen to a certain degree of independence and 
originality and which gives expression to the author’s individuality. 
17 In such an assessment, the focus would thus be on whether the subject-matter of 
applied art itself gave expression to some form of artistic effect. The starting point 
of the assessment of whether the subject-matter should be protected is therefore 
the subject-matter itself and not the author’s creative process and the choices that 
he or she actually made in the creation of the work. The question should be 
whether the subject-matter itself is an artistic achievement and gives expression to 
an artistic effort. 
18 In such an assessment – in particular where subject-matter of applied art is 
concerned – the person claiming an exclusive right might need to explain – and 
possibly also provide evidence of – the ways in which the subject-matter 
expresses an artistic effort. In clear-cut cases, where those elements may be 
discerned simply by looking at the subject-matte, the situation may however be 
such that no clarification or evidence is needed at all. 
19 It may also be discussed whether, in such an assessment, there is scope to apply 
some kind of auxiliary rule. For example, the question may be asked whether it is 
significant for the assessment that identical or similar subject-matter have been 
created before or – independently and without knowledge of the subject-matter – 
after the subject-matter in question was created. To illustrate this, it may be noted 
that in Swedish law – in the past at least – a so-called ‘duplication criterion’ has 
been applied. That criterion meant that if a subject-matter could be the subject of 
an independent duplication, it did not satisfy the requirement of originality. 
However, the criterion in itself did not answer the question of whether the 
originality requirement was satisfied. 
20 In the assessment of a subject-matter’s originality, it may also be discussed what 
is the significance of the fact that the subject-matter of applied art consists of 
elements found in common designs or that the subject-matter builds on and 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-580/23 
 
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constitutes a simple variation of earlier known models. In the view of the Patent- 
och marknadsöverdomstolen, there should per se be no obstacle to protecting, as a 
work, a subject-matter of applied art which consists of elements from common 
designs. In order to obtain copyright protection, the decisive factor should instead 
be the fact that those design elements have been used and combined in such a way 
that the end result merits copyright protection as a work of art. Where subject-
matter of applied art is concerned, however, the scope for artistic creativity based 
on known design elements is often more limited. Accordingly, simple variations 
of earlier known models as a starting point can hardly give expression to the kind 
of artistic effort required for the subject-matter to be afforded protection as a 
work. 
The question whether a work of applied art infringes the exclusive right to the 
work 
21 A question has arisen in this case as to how the examination should be carried out 
in the assessment of whether an allegedly infringing subject-matter is covered 
by – and infringes – the exclusive right to the work which is to be conferred on the 
author under Articles 2 to 4 of Directive 2001/29/EC. Essentially, the question is 
how the assessment of similarity between the work and the allegedly infringing 
subject-matter should be carried out and which similarity is required in order for 
the allegedly infringing subject-matter to be regarded as infringing the work. 
22 The Court of Justice has ruled that Article 2(c) of Directive 2001/29 must be 
interpreted as meaning that the phonogram producer’s exclusive right under that 
provision to reproduce and distribute his or her phonogram allows him or her to 
prevent another person from taking a sound sample, even if very short, of his or 
her phonogram for the purposes of including that sample in another phonogram, 
unless that sample is included in the phonogram in a modified form 
unrecognisable to the ear (see judgment of 29 July 2019, Pelham and Others, 
C-476/17, EU:C:2019:624, paragraph 39). 
23 On the basis of the Court’s ruling in the judgment in Pelham and Others, one 
might understand that what must be examined is whether the work is recognisable 
in the allegedly infringing subject-matter in order for an infringement of the 
exclusive right to the work which the author must have pursuant Articles 2 to 4 of 
Directive 2001/29/EC to be deemed to exist. Should that be the case, questions 
arise as to how the assessment should be conducted and what exactly is required 
for the work to be recognisable in the allegedly infringing subject-matter. If, on 
the contrary, the examination is not to focus on whether the work is recognisable 
in the allegedly infringing subject-matter, the question instead becomes whether 
what is to be examined is whether or not the subject-matter creates a different 
overall impression from the work or what else the examination should focus on. 
24 A comparison can also be made in this context with what applies in other areas of 
intellectual property law. The decisive factor in the case of alleged infringement 
of a Community design is whether the allegedly infringing design produces – or 
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does not produce – a different overall impression (see Article 10(1) of Council 
Regulation (EC) No 6/2002 of 12 December 2001 on Community designs). As 
regards trade marks, it is instead that the likelihood of confusion on the part of the 
public must be appreciated globally, taking into account all factors relevant to the 
circumstances of the case (see, for example, the judgment of 22 June 1999, Lloyd 
Schuhfabrik Meyer, C-342/97, EU:C:1999:323, paragraph 18). In that regard, it 
should be noted that the relevant legal acts are worded differently as regards the 
scope of the respective exclusive rights. 
25 As regards the scope of protection for a work, the Court of Justice has ruled that 
the protection conferred by Article 2 of Directive 2001/29 must be given a broad 
interpretation (judgment of 16 July 2009, Infopaq International, C-5/08, 
EU:C:2009:465, paragraphs 40 to 43). Furthermore, the Court has held that 
nothing in Directive 2001/29 supports the view that the extent of protection should 
depend on possible differences in the degree of creative freedom in the production 
of various categories of works (see judgment of 1 December 2011, Painer, 
C-145/10, EU:C:2011:798, paragraph 97). The Court has added that the extent of 
the protection does not depend on the degree of creative freedom exercised by its 
author, and that that protection is therefore not inferior to that to which any work 
is entitled (see judgment in Cofemel, paragraph 35). It is not clear from those 
judgments, however, whether the Court’s rulings relate to the significance of 
originality to the scope of protection for the work or, as the Patent- och 
marknadsöverdomstolen understands it, constitute a finding that copyright works 
of different kinds – photographic works, works of applied art and other kinds of 
works – should be assessed and protected in the same way. 
26 In other areas of intellectual property law, it has been clearly stated that 
distinctiveness or individual character has significance for the scope of protection. 
For example, the Court has stated that the more distinctive the trade mark, the 
greater will be the likelihood of confusion (see, for example, judgment of 
11 November 1997, SABEL v Puma, Rudolf Dassler Sport, C-251/95, 
EU:C:1997:528, paragraph 24, and judgment of 22 June 1999, Lloyd Schuhfabrik 
Meyer, C-342/97, EU:C:1999:323, paragraph 20). Furthermore, Article 10 of the 
Regulation on Community designs provides that, in assessing the scope of 
protection, the degree of freedom of the designer in developing his design is to be 
taken into consideration. Under Article 6, the same factor is be taken into 
consideration in assessing the individual character of a design. The question is 
whether this approach – the link between distinctiveness or individual character, 
on the one hand, and the scope of protection, on the other – applies in the same 
way to copyright matters as regards the originality of a work and the scope of 
protection afforded to it. 
27 An arrangement where the degree of originality has significance for the scope of 
protection appears, in the view of the Patent- och marknadsöverdomstolen, to be 
appropriate. The more original – or unique and artistically individual – a work is, 
the greater the scope of protection the work should have. 
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28 In the assessment of the scope of protection for a work, also, the question arises as 
to what significance has the fact that other similar subject-matter of applied art 
were created before or – independently and without knowledge of the work – after 
the creation of the work. 
29 In the same manner as for the assessment of whether a subject-matter of applied 
art merits protection as a work, the question can also be asked what is the 
significance that the assessment of the infringement and the assessment of the 
scope of protection of the fact that the work and the allegedly infringing subject-
matter consist of elements found in common designs or are based on and 
constitute simple variations of earlier designs or an ongoing design trend.