Referral C-323/24 (Deity Shoes, 2 May 2024)

(a) In order for a design to be covered by the system of protection under Council Regulation (EC) No 6/2002 of 12 December 2001, 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 creator? And, 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?

(b) 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] Council Regulation (EC) No 6/2002 of 12 December 2001, where the activity of the owner of the design is limited to marketing those designs in the EEA without modification or with specific modifications of components (such as soles, rivets, laces, buckles and so forth) 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 European marketing undertaking either, but are components offered by the trading undertaking itself in its catalogue?

(c) Must Article 14 [of] Council Regulation (EC) No 6/2002 of 12 December 2001 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 European marketing undertaking? 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?

(d) 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?