The European fashion and design sector thrives on innovation and rapid market response, but what legal standard determines whether a shoe or garment design merits protection under EU law? The recent CJEU judgment in the Deity Shoes case (CJEU 18 December 2025, ECLI:EU:C:2025:983) offers a clarifying response and addresses the essential conditions for EU design rights, making the threshold for protection and the scope of enforcement clear for practitioners and academics alike.
Legal Framework: European Union Design Rights
Regulation (EU) No. 2024/2822, amending EU Design Regulation (Council Regulation (EC) No. 6/2002, provides the statutory regime for design protection in the European Union. Under Articles 4-6, a design is protected if it is both new - meaning not previously made public - and has individual character, meaning it produces a distinct overall impression on the informed user compared to any design made available before the filing date. The right vests in the designer or their successor (Art. 14), and no minimum level of creative input is specified. The latter is a crucial point clarified by the CJEU in Deity Shoes.
Case Facts: The Deity Shoes Dispute
Deity Shoes accused Mondurama Confort and Stay Design of infringing both registered and unregistered EU design rights relating to its shoe models. The defendants argued that Deity Shoes’ for which design protection was sought, were merely shoes already known and manufactured by Chinese suppliers offered in catalogues, to which shoes Deity Shoes only added minor, trend-driven modifications, and therefore the designs as a whole were lacking both novelty and individual character. The case thus confronted the court with the following core questions:
- Must a design show creativity, or do novelty and individual character suffice?
- Can adherence to market trends reduce design freedom such that even small differences from older designs qualify for protection?
The court’s factual review confirmed the shoes by Deity Shoes were styled in line with current trends, altered mainly in color or material for European markets, but ultimately derived from supplier catalogues
The Judgment: Minimal Threshold, Holistic Test
The CJEU categorically rejected the notion that a design must surpass a "creativity threshold." If a new design, whatever its origin, creates an overall impression that differs from known designs for the informed user, it meets the requirements for protection. The origin of adjustments - whether the result of a supplier’s template or the rights holder’s minor modifications - are thus legally irrelevant.
The CJEU emphasized:
- No minimum creativity required: Protection is not dependent on the degree of inventiveness or artistry but on objective novelty and individual character;
- No exception for trends: Market or fashion trends do not restrict creative freedom as to make superficial changes decisive; design freedom remains broad and the impression test holistic;
- Substantial, not incidental, differences: Only significant distinctions in the overall impression suffice for eligibility. Minor, isolated variations do not qualify, even if driven by market demand.
Scope of Protection: Karen Millen Precedent
The scope of protection for designs derived from existing designs or works is a crucial consideration. As established by the CJEU in the Karen Millen case, the scope of design protection is determined by the overall impression the design makes on the informed user - not the sum of isolated differences. Only substantial variations qualify for novelty and individual character; insignificant tweaks are insufficient. Combinations of pre-existing elements may be protected if the aggregate appearance is distinguishable from prior designs.
A key implication for parties opposing the validity or scope of protection of such a design right is that reliance on "insignificant details" represents a robust line of defence. If the alleged protected design merely incorporates trivial alterations to an existing design, such as variations in minor features, color, or material that do not lead to a distinct overall impression for the informed user, then those "insignificant details" become your legal escape. In an invalidity action, demonstrating that the supposed differences are minor and do not alter the cumulative appearance can be decisive in defeating the asserted design right.
Practical Application and Boundary to Copyright
In practice, this means the European design regime offers broad protection for commercially-driven product adaptations, so long as the end product is not a trivial reproduction. This contrasts with copyright, where the work must reflect the author’s creative choices, a higher, subjective threshold absent in design law. The CJEU thereby affirms the functional and conceptual boundary between design and copyright, preventing creep from one regime into the other.
International Perspective: US Design Law
Outside the EU, the threshold for design protection can differ significantly. In the United States for example, a design must be new, original, and non-obvious, meaning that it must not be immediately apparent to those skilled in the art. This renders the US standard appreciably probably higher than the EU’s.
Strategic considerations apply as well: if a design originates in the US, first filing must occur there, accompanied by a declaration of inventorship. Such formalities are not required under EU law, where the applicant is presumed to be entitled. Nevertheless, under EU law it remains wise for the applicant and the designer to formalize their respective positions and entitlement arrangements in advance, thereby averting future disputes regarding ownership of the design right.
Conclusion
The Deity Shoes judgment settles the debate: the bar for EU design protection is relatively low and tightly circumscribed to objective legal tests, not creative merit or commercial context. The factor for registration and enforcement is the cumulative, holistic impression on the informed user, a standard that is both relatively predictable and accessible, providing commercial certainty for design-driven industries.
Our team of trademark and design specialists is always ready to assist with questions regarding design registration, scope of protection, and dispute strategies. Whether you are considering obtaining protection, defending your rights, or contesting a granted design, our experts offer practical, tailored advice and support throughout the entire legal process.
