Design Law & Copyright Law
Design and Copyright Attorney: What Really Protects Your Design?
Registered design, copyright—or both? Since the European Court of Justice issued a follow-up ruling in December 2025, the answer for fashion labels, designers, and product brands is different than it was two years ago. We’ll tell you which law actually applies to your specific case.
REHKATSCH
Attorneys
Overview
Design Law or Copyright Law—Which Is It?
The question is framed incorrectly, and that’s the good news. It’s not an either/or situation. One and the same design—a silhouette, a sole, a print, a color scheme—can be protected simultaneously as a registered design and as a work protected by copyright. Both rights coexist; neither is subordinate to the other.
What many people misunderstand: One does not automatically imply the other. Just because you’ve registered a design with the DPMA or the EUIPO doesn’t automatically mean it’s also protected by copyright. And the reverse is true as well. The two forms of protection assess completely different things—and these requirements must not be conflated.
A great deal of money is at stake for you precisely because of this: Design protection expires after 25 years at the latest. Copyright lasts 70 years beyond the author’s death—and it arises without registration, without fees, and without a registry. If you’ve properly established both, you’ll have two lines of defense against copycats instead of just one.
Classification
Design, Copyright, Trademark—Three Rights, Three Examinations
These three are constantly confused with one another. However, they provide different types of protection, are created differently, and last for different lengths of time. For your protection strategy, this is the most important overview on this page:
Registered Design
Protects
Appearance: shape, pattern, color, surface, decoration.
Requirement
Novelty and Distinctiveness—an objective comparison with what already existed.
Is caused by
Registration in a registry (DPMA or EUIPO).
Duration
A maximum of 25 years.
Injury
The same overall impression for the informed user.
Copyright
Protects
The work: the concrete intellectual creation, not the idea behind it.
Requirement
Originality—the design must reflect the personality of its creator.
Is caused by
The act of creation. No registration, no fee, no registry.
Duration
70 years after the author's death.
Injury
Creative elements were incorporated in a recognizable way.
Brand
Protects
The Origins: Name, Logo, Identity—What Your Label Stands For.
Requirement
Distinctiveness; no need to keep the term available for general use.
Is caused by
Registration—in exceptional cases, based on common practice.
Duration
Renewable indefinitely in ten-year increments.
Injury
Likelihood of confusion.
The most common misconception we encounter: “My design is registered, so it’s also protected by copyright.” That’s not the case. And the reverse scenario can be costly: Anyone who relies solely on a supposed copyright and therefore chooses not to register their design often ends up empty-handed in the event of a dispute.
The Exam
When is your design considered a copyrighted work?
The European Court of Justice reviews cases in two stages—and added a third, decisive clarification in December 2025. These three points determine whether you can invoke copyright law:
Freedom to make creative decisions
The design must reflect the personality of its creator by expressing the creator’s free and creative decisions. If, on the other hand, the form was dictated by technical considerations, rules, or other constraints that left no room for artistic freedom, it lacks originality.
Objectively identifiable
The protected subject matter must be identifiable with sufficient precision and objectivity—both for the courts and for third parties against whom you intend to take action. Subjective, intangible elements are excluded because they undermine legal certainty.
Unique aspect
New as of December 2025: Even a free choice is not sufficient if it does not lend the design a unique aspect. Creativity is not presumed—it must be identifiable and describable in the form of the object.
What is explicitly not enough: a particularly attractive appearance. The fact that a design creates a striking aesthetic or artistic visual effect beyond its functional purpose does not, in and of itself, justify copyright protection. Nor are the intentions behind the design, the sources of inspiration, recognition within professional circles, or a presentation in a museum decisive factors. Anyone who relies on these arguments during the proceedings is missing the point of the legal standard.
Protect Your Design—with the Right Strategy.
Have you developed a product, a collection, or a design and want to know whether design rights, copyright, or both apply? During a no-obligation initial consultation, we’ll assess your situation and show you the best way to protect your design against imitators.
Case Law
How the legal situation has changed over the past six years
Anyone who still operates today under the old German notion that everyday objects must possess a particularly high level of artistic quality is mistaken. Four decisions have redefined the field:
Cofemel v. G-Star
Jeans and sweatshirts. The European Court of Justice has rejected the notion that a design must have a particular aesthetic effect to qualify as a work. Design protection and copyright protection can coexist.
EuGH C-683/17
Brompton Bicycle
Folding bike. Even a form determined in part by technical constraints can be a work of art—as long as those constraints have not prevented the designer from expressing his or her personality.
EuGH C-833/18
Birkenstock sandal
The Federal Court of Justice (BGH) has ruled that the sandals are not protected by copyright. The decision illustrates where the line is drawn in practice in Germany—even when it comes to iconic designs.
German Federal Court of Justice, 1st Section of the Zivile Rechtsabteilung, Case No. 16/24
Mio and konektra
Dining table and furniture system. The European Court of Justice clarifies: there is no rule-exception relationship, nor are there higher requirements for applied art—and it specifies how an infringement is to be assessed.
ECJ C-580/23 and C-795/23
The key point is this: There is no “rule-exception” relationship between design patent protection and copyright protection. The originality of a utilitarian object is assessed according to the same criteria as that of any other work. This means that the old German “tiered theory” is finally a thing of the past—and furniture, fashion, and product design are no longer treated as second-class subjects under copyright law.
For Labels & Designers
What this means for your collection
Fashion is the most challenging field of applied art: fast-paced cycles, a limited range of designs, lots of trends, and little time for trademark applications. That’s exactly why it’s worth taking the time before launching a collection to determine what is actually eligible for protection—and under what provisions.
Cut & Silhouette
Seam placement, panel division, volume. The classic example from the Cofemel case: a pair of pants that achieves a unique leg shape by combining differently cut panels.
Print & Pattern
Graphics, embroidery, knitting, and weaving patterns. This is where the chances of obtaining copyright protection are often greatest—because there is the greatest creative freedom.
Accessories & Hardware
Bag clasp, sole, buckle, eyeglass temples, decorative element. Individual visible parts are eligible for protection on their own—and are the most frequently copied.
Collection Look
Color scheme, presentation, packaging, labeling. In these areas, design law and competition law often apply more effectively than copyright law. It all comes down to the combination.
Good news for fashion designers: Drawing on existing design elements doesn’t preclude originality. Even a design consisting solely of familiar shapes can be original—if your creative decisions are reflected in the arrangement of those shapes. And simply following the same trend as an older work does not constitute copyright infringement, as long as you do not incorporate specific, identifiable creative elements.
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Enforcement
Someone is copying you—and suddenly the difference matters
As long as nothing happens, this distinction is purely theoretical. But as soon as the replica is on the shelf, it determines your chances of success. That’s because design and copyright laws apply completely different standards when assessing infringement:
Design Law: Overall Impression
You are protected against any design that does not create a different overall impression on an informed user. The comparison, therefore, focuses on the overall effect—a relatively broad standard that works in your favor.
This makes the registered design a sharper weapon, especially against look-alikes.
Copyright: Distinctiveness
The overall impression is expressly irrelevant here. The only thing that needs to be examined is whether the creative elements of your work have been recognizably incorporated into the product in question. The level of creativity is also irrelevant to the scope of protection.
Furthermore, an independent parallel creation does not constitute an infringement—even if it looks deceptively similar.
In practice, this means that anyone who holds only a copyright must present their case much more precisely—they must identify the creative elements that were incorporated and be able to demonstrate them in both products. Those who also hold a registered design can focus on the overall impression. That is why we strive to establish both positions for our clients whenever possible, before a dispute arises.
From Real-World Experience
A typical case: the new label and the marketplace clone
A Berlin-based label releases a jacket with a very distinctive shoulder design and a custom-designed quilting pattern. Six months later, a knockoff appears on a major marketplace—different brand name, different label on the back of the neck, but the shoulder design and quilting are practically identical.
From a trademark perspective, there’s nothing to be gained here: no third-party trademark is being used. Under copyright law, however, it becomes a challenge—the label must demonstrate which design choices were independent, what constitutes the unique aspect, and that it is precisely these elements that have been recognizably copied. If the jacket had been registered, the same dispute would center on the overall impression—and thus be resolved much more quickly.
Such cases are almost always resolved in the weeks leading up to the release, not in the weeks following the copy’s appearance. That’s why the best time for a discussion is when the collection is ready but nothing has been released yet.
We'll tell you which law truly protects you.
Are you planning a collection, looking to protect a product, or have you discovered a knockoff? During a no-obligation initial consultation, we’ll review your specific design and let you know which intellectual property rights apply—without legal jargon and without any time pressure.
Your Contacts
Why Choose REHKATSCH Attorneys at Law?
We specialize in law related to media, the press, and intellectual property—and cover both sides of the spectrum under one roof: removing unwanted posts as well as defending against unjustified account suspensions. You don’t need two law firms or lengthy explanations. We’ll review your case quickly, clearly tell you what’s possible, and consistently follow through.
Patrick Rehkatsch
Attorney Specializing in Copyright and Media Law – Founder
Attorney
Specializing in
Copyright and Media Law
Juliette Sarvan de Castro
Attorney Specializing in Copyright and Media Law
Frequently Asked Questions About Design Law and Copyright Law
As a general rule, yes. You can’t know for sure whether copyright protection exists until a court has ruled on the matter—and that process is time-consuming. A registered design, on the other hand, provides you with a record, a date, and a broader scope for determining infringement. If you have both, you’ll be negotiating from a much stronger position.
No. There is no automatic connection between the two types of intellectual property rights. Design patent registration examines novelty and distinctiveness in comparison to the existing body of designs, while copyright law focuses on originality and the author’s individual expression. Two different questions, two different answers.
No. The European Court of Justice has expressly ruled that an aesthetically striking visual effect that goes beyond the object’s intended use does not, in and of itself, constitute a work. What matters is whether independent creative decisions can be identified in the object’s form.
Three points: First, utility items are not subject to higher originality requirements than other types of works. Second, a free choice is sufficient only if it lends the design a unique aspect. Third, infringement is determined not by the overall impression, but by the recognizable adoption of creative elements. We’ll discuss what this specifically means for your design during our initial consultation.
Not necessarily. Using existing design elements does not preclude originality. What matters is whether your creative choices are evident in the arrangement and combination of these elements. This is a case-by-case matter—and that’s exactly where a legal assessment makes all the difference.
It doesn’t automatically belong to you just because you paid for it. Copyright belongs to the person who created the design and must be granted by contract; the right to register the design belongs to the designer. Without a clear agreement, there’s a risk that your successful product won’t be clearly owned by anyone. We’ll take care of that for you—preferably before you proceed.
Stay calm and make a note of the deadlines. Not every cease-and-desist letter is justified, and not every registered design stands up to close scrutiny—a lack of novelty or distinctiveness are effective counterarguments. Send us the documents, and we’ll assess the chances of success and let you know what the best next step is.