1 This request for a preliminary ruling concerns the interpretation of Articles 4 to 6 of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1), read in the light of Article 14 of that regulation.
2 The request has been made in proceedings between Deity Shoes, S.L., on the one hand, and Mundorama Confort, S.L. and Stay Design, S.L., on the other hand, concerning, first, an action for infringement of registered and unregistered Community designs for several models of shoes and, secondly, a counterclaim for a declaration of invalidity of those designs.
3 Regulation No 6/2002 was amended by Regulation (EU) 2024/2822 of the European Parliament and of the Council of 23 October 2024 (OJ 2024 L 2822, p. 1). However, in view of the date of the facts giving rise to the dispute in the main proceedings, the present request for a preliminary ruling must be examined in the light of Regulation No 6/2002, in its initial version.
4 Recitals 7, 14 and 19 of Regulation No 6/2002 state: ‘(7) Enhanced protection for industrial design not only promotes the contribution of individual designers to the sum of Community excellence in the field, but also encourages innovation and development of new products and investment in their production. … (14) The assessment as to whether a design has individual character should be based on whether the overall impression produced on an informed user viewing the design clearly differs from that produced on him [or her] by the existing design corpus, taking into consideration the nature of the product to which the design is applied or in which it is incorporated, and in particular the industrial sector to which it belongs and the degree of freedom of the designer in developing the design. … (19) A Community design should not be upheld unless the design is new and unless it also possesses an individual character in comparison with other designs.’
5 Under the definitions contained therein, Article 3 of that regulation defines the concept of ‘design’ as referring to ‘the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture and/or materials of the product itself and/or its ornamentation’.
6 Article 4 of that regulation entitled ‘Requirements for protection’, provides in paragraph 1 thereof: ‘A design shall be protected by a Community design to the extent that it is new and has individual character.’
7 Under Article 5 of that regulation, entitled ‘Novelty’: ‘1. A design shall be considered to be new if no identical design has been made available to the public: (a) in the case of an unregistered Community design, before the date on which the design for which protection is claimed has first been made available to the public; (b) in the case of a registered Community design, before the date of filing of the application for registration of the design for which protection is claimed, or, if priority is claimed, the date of priority. 2. Designs shall be deemed to be identical if their features differ only in immaterial details.’
8 Article 6 of Regulation No 6/2002, entitled ‘Individual character’, provides: ‘1. A design shall be considered to have individual character if the overall impression it produces on the informed user differs from the overall impression produced on such a user by any design which has been made available to the public: (a) in the case of an unregistered Community design, before the date on which the design for which protection is claimed has first been made available to the public; (b) in the case of a registered Community design, before the date of filing the application for registration or, if a priority is claimed, the date of priority. 2. In assessing individual character, the degree of freedom of the designer in developing the design shall be taken into consideration.’
9 Article 14 of that regulation, entitled ‘Right to the Community design’, provides in paragraph 1 thereof: ‘The right to the Community design shall vest in the designer or his [or her] successor in title.’
10 Deity Shoes is a company which owns several community designs representing shoes. Its designs are determined based on the catalogues of Chinese trading undertakings, allowing for the customisation, according to predetermined lists, of the various components of the shoe, such as the colour, the material, and the placement of buckles, laces and other decorative elements.
11 On 10 December 2021, Deity Shoes brought an action before the Juzgado de lo Mercantil no 1 de Alicante (Commercial Court No 1, Alicante, Spain), the referring court, for infringement of both registered and unregistered Community designs for various models of shoes against against Mundorama Confort and Stay Design.
12 On 12 April 2022, Mundorama Confort and Stay Design filed a counterclaim for a declaration of invalidity of those designs. Mundorama Confort and Stay Design argue that there is no innovation in the designs at issue since Deity Shoes merely markets products offered by Chinese trading undertakings. Mundorama Confort and Stay Design argue that those designs do not meet the conditions relating to novelty and individual character required, respectively, under Articles 5 and 6 of Regulation No 6/2002.
13 On 24 May 2022, Deity Shoes responded to that counterclaim.
14 The referring court notes, first of all, that the visual characteristics of the models marketed by Deity Shoes are, for the most part, predetermined by the models offered by its suppliers, the Chinese trading undertakings, so that the modifications made to those models are merely ad hoc and incidental. Furthermore, the modifications at issue themselves are offered by trading undertakings using components which appear in their catalogues.
15 Consequently, that court is asking under what conditions a design resulting from such a creative process could benefit from the protection conferred by Regulation No 6/2002 on Community designs. In other words, that court asks whether, for the purposes of that protection, the design must be the result of a genuine design activity stemming from a particular intellectual effort by its owner.
16 Next, the referring court states that Deity Shoes operates in a sector where price and volume play an important role, so the designers’ room for manoeuvre is limited. Since any modification or customisation of the designs appearing in the suppliers’ catalogues leads to an increase in costs, a company such as Deity Shoes is not be incentivised to make substantial changes to the basic models of shoes appearing in those catalogues.
17 Lastly, the referring court points out that the designs offered by Deity Shoes follow known fashion trends, which allow, in the absence of investment in innovation, for them to be marketed in large quantities and at low prices on the market of the European Union.
18 That court is therefore asking whether fashion trends are likely to be regarded as also limiting the freedom of the designer, with the result that minor differences between one or more prior designs, on the one hand, and the design at issue, on the other hand, could be sufficient for that design to give a different overall impression on the informed user and thus have an individual character within the meaning of Article 6 of Regulation No 6/2002.
19 In those circumstances the Juzgado de lo Mercantil no 1 de Alicante (Commercial Court No 1, Alicante) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) In order for a design to be covered by the system of protection under [Regulation No 6/2002], is it necessary for there to be a genuine design activity in such a way that the design is the result of the intellectual effort of its [designer]? In that regard, may a combination of components on the basis of models whose features of appearance are for the most part predetermined by the trading undertakings, with the effect that modifications to certain features are to be regarded as ad hoc and incidental, be regarded as a genuine design activity? (2) In the light of the foregoing, may all or some of the feature[s] of appearance of a product resulting from the customisation of designs that are offered by Chinese trading undertakings, in accordance with those undertakings’ catalogues, be regarded as having individual character within the meaning of Article 6 of [Regulation No 6/2002], where the activity of the owner of the design is limited to marketing those designs in the [European Economic Area (EEA)] without modification or with specific modifications of components (such as soles, rivets, laces and buckles …) and the features of appearance are predetermined for the most part by the trading undertakings? In that regard, is it relevant that the components are not designed by the [owner of the design] either, but are components offered by the trading undertaking itself in its catalogue? (3) Must Article 14 of [Regulation No 6/2002] be interpreted as meaning that a person may be regarded as the designer in relation to a design where, on the basis of a design offered by trading undertakings in accordance with a catalogue, he or she has merely customised that prior design by modifying components also offered by the trader, and those components have not been designed by the [owner of the design]? In that regard, is it necessary to prove a specified degree of customisation in order to demonstrate that the final form departs significantly from the original design and thus that authorship may be claimed? (4) Without prejudice to the foregoing, in a case such as the present case, in view of the particular characteristics of footwear designed on the basis of trading operators’ sample books and, in so far as the “design” is limited to selecting existing designs from a sample book and, where appropriate, to varying some of their components, from those in the catalogue which the manufacturer itself (the trading undertaking) offers, all in accordance with fashion trends, must it be understood that those fashion trends: (a) restrict the designer’s freedom in such a way that minor differences between the registered (or unregistered) design and another model are sufficient to give a different overall impression or, conversely, (b) detract from the individual character of the registered (or unregistered) design with the effect that those elements or components are of less importance in the overall impression they produce on the informed user in so far as they result from known fashion trends when compared with another model?’
20 At the outset, it should be noted that, even if, formally, the referring court has referred, in its third question, only to Article 14 of Regulation No 6/2002, that circumstance does not, however, prevent the Court from providing the referring court with all the elements of interpretation of EU law which may be of assistance in adjudicating in the case pending before it, whether or not the referring court has specifically referred to that provision in the wording of its questions (see, to that effect, judgments of 29 November 1978, Redmond, 83/78, EU:C:1978:214, paragraph 26, and of 29 July 2024, Alchaster, C‑202/24, EU:C:2024:649, paragraph 38 and the case-law cited).
21 In that regard, it is apparent from the order for reference that the referring court is uncertain about the scope of the conditions, laid down in Article 4 of Regulation No 6/2002, for the protection of a design. More specifically, that court wishes to obtain clarification on the condition of novelty, set out in Article 5 of that regulation, and that of individual character, set out in Article 6 of that regulation. In this context, that court asks, in particular, whether, in order to claim the status of ‘designer’ within the meaning of Article 14 of that regulation, it is necessary to demonstrate a certain degree of customisation enabling to establish that the final appearance of the design differs significantly from the prior design appearing in the trading undertaking’s catalogue.
22 In those circumstances, it must be found that, by its first and third questions, which should be examined together, the referring court is asking, in essence, whether Regulation No 6/2002 and, in particular, Articles 4 to 6 thereof, read in the light of Article 14 of that regulation, must be interpreted as meaning that, in order to enjoy the protection conferred on a Community design, the owner or designer of that design must demonstrate, in addition to the existence of the conditions of novelty and individual character, that that design is the result of a minimum degree of originality.
23 It should be recalled, as a preliminary point, that, under Article 3(a) of Regulation No 6/2002, ‘design’ is defined as ‘the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture and/or materials of the product itself and/or its ornamentation’. It follows that, under the system laid down by that regulation, appearance is the decisive factor for a design (judgment of 28 October 2021, Ferrari, C‑123/20, EU:C:2021:889, paragraph 30 and the case-law cited).
24 In the first place, it should be noted that Article 4(1) of that regulation, read in the light of recital 19 thereof, provides that a design is to be protected by a Community design to the extent that it is new and has individual character.
25 In that regard, it is important to recall that, with regard to the first condition, relating to novelty, Article 5(1) of Regulation No 6/2002 provides that a design is to be considered to be new if no identical design has been made available to the public, in the case of an unregistered Community design, before the date on which the design for which protection is claimed has first been made available to the public or, in the case of a registered Community design, before the date of filing of the application for registration of the design for which protection is claimed, or, if priority is claimed, the date of priority.
26 As regards the second condition, as to whether a design has individual character, it is apparent from recital 14 of that regulation that the assessment as to whether a design has such character is to be based on whether the overall impression produced by that design on an informed user viewing the design clearly differs from that produced on him or her by the existing design corpus, taking into consideration the nature of the product to which the design is applied or in which it is incorporated, and in particular the industrial sector to which it belongs and the degree of freedom of the designer in developing the design. Thus, Article 6(1) of Regulation No 6/2002 provides that a design is to be considered to fulfil that condition if the overall impression it produces on the informed user differs from the overall impression produced on such a user by any design which has been made available to the public. To assess that character, Article 6(2) of that regulation states that the degree of freedom of the designer in developing the design is to be taken into consideration.
27 In that regard, the Court has held that, depending on the degree of freedom a designer has to develop the appearance of a product, taking into account the technical constraints that weigh on it, a greater or lesser level of differentiation is necessary to establish that the design produces a different overall impression on the informed user. Thus, where the designer’s freedom is restricted by a high number of features of appearance of the product or of the part of the product at issue which are solely dictated by the technical function of that product or of that part of the product, the presence of minor differences between the designs at issue may be sufficient to produce a different overall impression on the informed user (see, to that effect, judgment of 4 September 2025, LEGO (Concept of informed user of a design), C‑211/24, EU:C:2025:648, paragraph 52).
28 By referring to the designer’s degree of freedom in Article 6(2) of Regulation No 6/2002, the EU legislature intended to take into account that degree of freedom in the development of the design for the purpose of assessing the overall impression produced by that design, since that degree of freedom may be restricted by technical or regulatory constraints. By contrast, that legislature did not require that, in addition to the existence of the conditions of novelty and individual character, it be demonstrated, in order to enjoy the protection conferred by Articles 4 to 6 of that regulation, that that design is the result of a minimum degree of creation.
29 As the Advocate General noted in points 22 and 23 of his Opinion, the protection of a design differs in this respect from that of ‘works’ within the meaning 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 (OJ 2001 L 167, p. 10). While the concept of ‘work’ entails that there exists an original subject matter, which reflects the personality of its author, as an expression of his or her free and creative choices, the purpose of the protection of designs, for its part, is to protect subject matter which, while being new and distinctive, is functional and liable to be mass-produced (see, to that effect, judgment of 12 September 2019, Cofemel, C‑683/17, EU:C:2019:721, paragraphs 29, 30 and 50).
30 Accordingly, as the Advocate General noted in points 25 and 26 of his Opinion, the two conditions recalled in paragraph 24 of this judgment only entail a comparison between the existing design corpus, on the one hand, and the design for which protection as a Community design is requested, on the other hand, the Community design regime being based on the overall impression produced by the product on an informed user, and not on a minimum degree of creativity on the part of the designer.
31 It follows that it is not apparent from Articles 4 to 6 of Regulation No 6/2002 that any additional conditions are required for the protection conferred by that regulation, such as that relating to the demonstration of a minimum degree of creation.
32 In the second place, it should be noted that the fact that Article 14(1) of that regulation provides that the right to a Community design belongs to the ‘designer’ or his or her successor in title cannot be interpreted as meaning that the EU legislature intended to establish an additional condition relating to the demonstration of a minimum degree of creation, in order to enjoy the protection conferred by Articles 4 to 6 of that regulation. As the Advocate General noted in point 31 of his Opinion, the term ‘designer’ referred to in Article 14 of Regulation No 6/2002 is relevant only for determining the person or entity to whom protection of the Community design will be conferred.
33 In the light of the foregoing, the answer to the first and third questions is that Regulation No 6/2002 and, in particular, Articles 4 to 6 thereof, read in the light of Article 14 of that regulation, must be interpreted as meaning that, in order to enjoy the protection conferred on a Community design, the owner or designer of that design does not have to demonstrate, in addition to the existence of the conditions of novelty and individual character, that that design is the result of a minimum degree of creation.
34 By its second and fourth questions, which should be examined together, the referring court asks, in essence, whether Article 6 of Regulation No 6/2002 must be interpreted as meaning that, first, the fact that designs have predetermined visual characteristics provided by a model offered in a supplier’s catalogue to the designer of those designs, and that the modifications made to those designs by that designer are only ad hoc and relate to components offered by that supplier, is capable, in itself, of precluding recognition of their individual character within the meaning of that Article 6.
35 In this context, the referring court asks, secondly, whether Article 6 of Regulation No 6/2002 must be interpreted as meaning that fashion trends are likely to limit the degree of freedom of the designer, in such a way that minor differences between one or more prior designs and the design at issue may suffice for that design to produce a different overall impression on the informed user than that produced by those prior designs and thus have an individual character within the meaning of that Article 6, or whether, on the contrary, the features of a design resulting from such trends are likely to have less importance on the overall impression that that design produces on the informed user.
36 In the first place, as regards the assessment of whether a design has individual character within the meaning of Article 6 of Regulation No 6/2002, it should be borne in mind that the Court has held that that provision must be interpreted as meaning that, in order for a design to be considered to have individual character, the overall impression which that design produces on the informed user must be different from that produced on such a user not by a combination of features taken in isolation and drawn from a number of prior designs, but by one or more prior designs, taken individually (judgment of 28 October 2021, Ferrari, C‑123/20, EU:C:2021:889, paragraph 46 and the case-law cited).
37 The Court has thus pointed out that the concept of ‘individual character’, within the meaning of Article 6 of Regulation No 6/2002, governs not the relationship between the design of a product and the designs of its component parts, but rather the relationship between those designs and other prior designs (judgment of 28 October 2021, Ferrari, C‑123/20, EU:C:2021:889, paragraph 47).
38 It thus follows that a Community design can be composed of various prior designs, where, taken individually, the resulting design does not produce the same overall impression on the informed user as that produced by those prior designs. This is also confirmed by the fact that the benefit of the protection conferred by Regulation No 6/2002 on a Community design does not require, as is apparent from paragraph 33 of this judgment, that the owner or designer of that design demonstrates, in addition to the existence of the conditions of novelty and individual character, that that design is the result of a minimum degree of creation.
39 Consequently, the fact that, as in the dispute in the main proceedings, the designs at issue have visual characteristics which are predetermined by the models offered in the suppliers’ catalogues to the designer of those designs, and that the modifications made to those designs by that designer are only ad hoc and relate to components offered by those suppliers, is not in itself likely to preclude recognition of their individual character within the meaning of Article 6 of Regulation No 6/2002.
40 In the second place, the question arises as to whether, in such a context, fashion trends are likely to influence the degree of freedom of the designer in such a way that minor differences between one or more prior designs, on the one hand, and the design at issue, on the other hand, may suffice for that design to produce a different overall impression on the informed user than that produced by those prior designs, or whether, on the contrary, the elements which result from of such trends are likely to have less importance on the overall impression produced on the part of an informed user.
41 As is apparent from paragraph 27 of this judgment, where the designer’s freedom is restricted by a high number of features of appearance of the product or of the part of the product at issue which are solely dictated by the technical function of that product or of that part of the product, the presence of minor differences between the designs at issue may be sufficient to produce a different overall impression on the informed user (see, to that effect, judgment of 4 September 2025, LEGO (Concept of informed user of a design), C‑211/24, EU:C:2025:648, paragraph 52).
42 In that regard, it should be noted, as the Advocate General did in point 48 of his Opinion, that the features linked to fashion trends differ from those linked to the technical function of the product or to applicable legal requirements, in that the latter are both inevitable and permanent or lasting.
43 It is of the very essence of fashion not to last and to evolve, precisely, according to both visual and technological innovations. Furthermore, fashion trends cannot be considered to be inevitable in the sense that they necessarily predetermine the features of a product and that a designer does not have the freedom to innovate to depart from them.
44 Furthermore, such trends cannot be regarded as a factor limiting the freedom of the designer, since it is precisely that freedom which allows him or her to discover new forms, new trends, or to innovate within the framework of an existing trend.
45 Accordingly, it must be found that fashion trends do not limit the degree of freedom of the designer, in such a way that minor differences between one or more prior designs and the design at issue may suffice for that design to produce a different overall impression on the informed user than that produced by the former.
46 In those circumstances, it is still necessary to determine whether the elements of a design, which result from of fashion trends, are likely to influence the perception that an informed user has of them, in the sense that, because of his or her knowledge of the sector concerned, that designer would be aware that those elements are generally found in the designs of that sector, so that he or she would pay less attention to them.
47 In that regard, the Court of Justice has already held that the concept of the ‘informed user’, which is not defined in Regulation No 6/2002, may be understood as referring, not to a user of average attention, but to a particularly observant one, either because of his or her personal experience or his or her extensive knowledge of the sector in question (judgment of 21 September 2017, Easy Sanitary Solutions and EUIPO v Group Nivelles, C‑361/15 P and C‑405/15 P, EU:C:2017:720, paragraph 124 and the case-law cited).
48 Furthermore, the adjective ‘informed’ suggests that, without being a designer or a technical expert, the user knows the various designs which exist in the sector concerned, possesses a certain degree of knowledge with regard to the features which those designs normally include, and as a result of his or her interest in the products concerned, shows a relatively high degree of attention when he or she uses them (judgment of 21 September 2017, Easy Sanitary Solutions and EUIPO v Group Nivelles, C‑361/15 P and C‑405/15 P, EU:C:2017:720, paragraph 125 and the case-law cited).
49 In the present case, the fact that the differences between the contested designs and prior designs are based on fashion trends should not, in principle, make the informed user less attentive. As is apparent from the above considerations, it is precisely because of his or her extensive knowledge of the sector concerned that that user has a relatively high level of attention.
50 Admittedly, the fact that certain elements are omnipresent in the market concerned, in the sense that they result from of massively adopted trends or that many suppliers offer identical elements, can impact the aesthetic perception of a design, or even influence the commercial success of the product in which it would be incorporated.
51 However, such consideration is not relevant in the examination of the individual character of the design, which is to be based on whether the overall impression produced by that design differs from that produced by the designs made available earlier, irrespective of the aesthetic or commercial considerations.
52 It follows that the features of a design which result from of fashion trends are not, by themselves, likely to weigh less heavily in the overall impression which those features produce on an informed user.
53 Consequently, in order to determine whether the designs at issue in the main proceedings have ‘individual character’ within the meaning of Article 6 of Regulation No 6/2002, it is for the referring court to assess whether the differences between those designs and prior designs are sufficiently important to produce a different overall impression or, on the contrary, whether those differences relate only to insignificant details.
54 In the light of the foregoing considerations, the answer to the second and fourth questions is that Article 6 of Regulation No 6/2002 must be interpreted as meaning that, first, the fact that designs have predetermined visual characteristics provided by a model offered in a supplier’s catalogue to the designer of those designs, and that the modifications made to those designs by their designer are only ad hoc and relate to components offered by that supplier, is not in itself capable of preventing the recognition of their individual character within the meaning of that Article 6. Secondly, fashion trends are not likely to limit the degree of freedom of the designer in such a way that minor differences between one or more prior designs and the design at issue may suffice for that design to produce a different overall impression on the informed user than that produced by those prior designs and thus have an individual character. The features of a design which result from fashion trends are not likely to be of lesser importance in the overall impression they produce on such a user.
55 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.