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Conventional legal thinking often defaults to the premise that “functional products”—such as a pair of jeans, a pair of sandals, a fashion handbag, or a perfume bottle—fall primarily within the scope of Industrial Design protection. Rights holders rarely consider the mechanism of Copyright, due to the misconception that the form of mass-produced products can hardly meet the threshold of a "work" or a "work of applied art" to warrant protection.
KENFOX IP & Law Office will analyze the case of Cofemel v. G-Star to elucidate how the Court of Justice of the European Union (CJEU) established a new standard in viewing applied designs from a Copyright perspective. The case not only poses the question of whether a pair of jeans—traditionally viewed as a common consumer product—can be recognized as a “work,” but also opens up a broader debate regarding the boundary between utility and creativity. From this, businesses can conceptualize the prerequisites that must be satisfied to determine when a "functional product" can still be protected under copyright law, alongside the industrial design protection mechanism.
G-Star Raw (G-Star Raw CV) is a renowned Dutch fashion company, founded in 1989 in Amsterdam. The brand is globally famous for its denim products (jeans) and its raw, rugged design style. Cofemel (Cofemel - Sociedade de Vestuário SA) is a Portuguese fashion company. It owns the fashion brand Tiffosi, which is highly popular in Portugal and Spain, specializing in the manufacture and trade of ready-to-wear apparel.
In 2013, G-Star Raw initiated legal proceedings against Cofemel, alleging that Cofemel had copied its jeans and t-shirt models named “ARC” and “ROWDY”. The Plaintiff, G-Star, argued that the “ARC” and “ROWDY” models were not merely everyday apparel, but rather the culmination of an intentional, original creative process, thereby qualifying them as “works” eligible for protection under copyright law. Conversely, the Defendant, Cofemel, countered that clothing serves a functional purpose, and such apparel designs cannot be classified as "works" entitled to such protection. Additionally, Cofemel argued that to be eligible for copyright protection, a design must transcend into "art" and possess a specific “aesthetic value” or “artistic effect”.
Image source : www.alamy.com/ www.sgcr.pt and www.aippi.org
The Portuguese Court of First Instance ruled in favor of G-Star, recognizing the ARC and ROWDY models as “works,” ordering Cofemel to cease its infringing acts, and directing the disgorgement of profits. Cofemel appealed the judgment to the Tribunal da Relação de Lisboa (Court of Appeal, Lisbon, Portugal), which subsequently affirmed the lower court's decision.
The case was further appealed to the Supreme Court of Portugal. This apex court acknowledged that G-Star’s designs were the result of a creative design process featuring specific formative elements, and that Cofemel had incorporated several of those elements into its own products. However, the Supreme Court faced a legal dilemma: the Portuguese Copyright Act did not explicitly define the requisite threshold of “originality” for this category of designs, and judicial practice reflected the view that an “aesthetic effect” or “high artistic value” was required to trigger protection.
Consequently, the Supreme Court of Portugal referred a question to the Court of Justice of the European Union (CJEU) for a preliminary ruling in Case C-683/17, seeking clarification on whether Article 2(a) of Directive 2001/29/EC (the InfoSoc Directive) permits a Member State to reserve copyright protection for designs that produce a “specific aesthetic effect,” in addition to the criterion of “originality”.
Article 2(a) of Directive 2001/29/EC (InfoSoc Directive) concerning the right to reproduction obliges States Parties to grant authors “ the exclusive right to permit or prohibit reproduction of their works by any means and in any form .” However, the Directive does not provide a complete definition of the concept of “work.” This legislative silence opens the door to differing national interpretations: Each legal system tends to “define” a work according to its own tradition, particularly for objects that lie on the boundary between art and function, such as fashion design, furniture, and industrial products.
In this context, the CJEU's task in the Cofemel case was to establish a unified EU-level standard on: (1) When an applied design – such as clothing – can be considered a “work” for copyright protection, and (2) Whether Member States are permitted to add the condition of “aesthetic effect/artistic value” in addition to the criterion of “originality”?
The Court of Arbitration for the Exonerated States (CJEU) is not a conventional tribunal, so it cannot simply declare "G-Star wins, Cofemel loses." The CJEU's role is to interpret the law , but the content of that interpretation directly impacts the outcome of the dispute. In this case, the CJEU's entire argument heavily favored G-Star and refuted Cofemel's reasoning .
Therefore, the crux of the dispute before the CJEU centered on whether EU law permits a Member State to require an aesthetic/artistic criterion in addition to “originality”?.
The CJEU affirms that the concept of "work" is an autonomous concept of EU law . Member States may not define it in a way that alters or fragments the scope of protection.
The goal is to ensure (i) consistency in the application of the InfoSoc Directive; (ii) legal security and predictability for authors and businesses exploiting works in multiple EU countries; and (iii) avoiding a "one-size-fits-all" approach that makes copyright law confusing and lacking transparency.
Based on previous precedents (Infopaq, Painer, Levola Hengelo…), the CJEU asserts that an object (whether literary, musical, artistic, or applied design such as clothing) is only considered a “work” when it simultaneously meets the following two cumulative conditions :
The CJEU emphasizes that these two conditions are cumulative and complete . If a design meets both originality and identity , it is a “work” under EU law. No other conditions are permitted , such as how beautiful it is, what its artistic value is, or whether it is recognized by the art world.
The key point in the Cofemel ruling is the European Court of Justice's (CJEU) definitive rejection of the "aesthetic effect" criterion as a condition for recognizing copyright protection. The CJEU points out that:
Therefore, the CJEU concluded: “Aesthetic effect” cannot be used as an additional condition for recognizing copyright protection. Simply put: copyright is not a “prize for beauty ,” but a mechanism for protecting the author's original creation .
Whether a clothing design looks "beautiful," "impressive," or "fashionable" is not sufficient to determine its eligibility for protection. The deciding factor is whether it is the result of the author's free and creative choices, original in nature , or merely a formal solution influenced by functionality and industry trends.
Although CJEU did not declare "G-Star the winner," they stated:
A common concern is: If industrial designs (e.g., clothing, handbags, furniture) can be protected under both design rights and copyright , will this lead to the abuse of "dual protection" (cumulation), distorting the balance of the intellectual property system and causing market distortions? The CJEU asserts:
Therefore, copyright should not be used as a tool to "indefinitely extend" what should rightfully only be within the short-term protection scope of design. The only way to prevent this abuse is to maintain the standard of "originality" at a substantive level , not to lower or replace it with vague criteria such as "superior aesthetic effect".
In other words, a clothing design is only protected by copyright if—and only if—it is truly the author's own unique intellectual creation , and not simply because it is fashionable, attractive, or "better than usual."
For businesses in the design sector—from fashion and interior design to industrial products—the G-Star Raw v. Cofemel case offers a different perspective, delivering a dual message: a warning but also an opportunity . The warning lies in the fact that if businesses continue to disregard the legal value of "originality" and treat design products merely as consumer goods, they are stripping themselves of a strong and long-term legal protection provided by copyright. The opportunity is that by proactively building and preserving a " creative footprint "—from initial sketches and design selections to rejected options—businesses will possess a compelling body of evidence to prove that their products are the result of free and creative choices, not a mediocre variation of what already exists on the market, thus gaining an advantage in copyright claims and dispute resolution.
G-Star Raw sues Cofemel This case also provides a benchmark for legal systems outside the EU, including Vietnam, when addressing the question: When does an application design "cross the threshold" to be protected as a copyrighted work, alongside traditional mechanisms such as industrial designs, trademarks, or anti-unfair competition? The case helps Vietnamese lawmakers, courts, and businesses have a clearer and more consistent frame of reference in protecting creative value in the design industries.
With 15 years of operation and a solid position in the field of Intellectual Property, KENFOX IP & Law Office has partnered with thousands of domestic and international businesses to establish robust legal protection mechanisms. We not only help you establish rights to Designs, Trademarks, and Copyrights, but also provide aggressive enforcement solutions to combat even the most sophisticated acts of copying.
Nguyễn Vũ Quân| Partner, IP Attorney
Đào Thị Thúy Nga| Senior Patent Attorney
Nguyễn Thị Kim Anh| Patent Executive
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