Bristows - Cease & Discuss: Fashion, function, and the future of design law | the CJEU decision in Deity Shoes

In the latest episode of our podcast Cease & Discuss, Simon and Kyrana consider the CJEU’s judgment in Deity Shoes SL v. Mundorama Confort SL and Stay Design SL. This case explores the messy reality of fast fashion and EU design rights, while highlighting the growing divergence between EU and UK law.

The Decision

The case concerns Deity Shoes, which asserted registered and unregistered Community design rights against Mundorama Confort and Stay Design. Deity Shoes developed its products by working with Chinese undertakings, using their catalogues to customise shoes based on predetermined options for components like buckles, laces, and decorations. It alleged that the defendants had reproduced those designs. 

The defendants counterclaimed for invalidity, arguing that Deity Shoes’ designs lacked novelty and individual character because they were merely minor variations of existing products offered by trading undertakings.

The CJEU took the opportunity to clarify several key points about the threshold for design protection:

• The Court clarified that design protection does not require originality in the copyright sense. The focus remains strictly on whether the design produces a different overall impression on the informed user. The term “designer” in the Regulation is used to identify ownership, not to impose any requirement for creativity.
• A design can produce a different overall impression even if previous designs have incorporated its individual elements – provided the specific combination creates a new overall impression. The Court confirmed that defendants cannot invalidate a design by cobbling together features from various earlier designs.
• The Court rejected the argument that fashion trends act as a technical constraint that limit a designer's freedom. Following a trend does not lower the threshold for protection and designers cannot claim that minor differences are sufficient to avoid infringement just because they are following fashion trends. 

The UK Position

Meanwhile, the UK’s framework for design rights remains less than ideal due to the uncertainty caused by overlapping protections and their uneasy tension with copyright law. In particular, the UK remains stuck in a “closed list” copyright system (requiring designs to fall within circumscribed definitions of works) that creates significant uncertainty regarding the limits of design and copyright law. The tension is exemplified by two recent cases: 

• WaterRower v Liking¹: The Court found that while a rowing machine would satisfy the EU test for originality, it failed to qualify for copyright protection in the UK because it was not a work of artistic craftsmanship under the CDPA 1988.
• AGA Rangemaster v UK Innovation Group²: In the Court of Appeal, Arnold LJ declined to comment on whether UK copyright law is compatible with EU standards (Cofemel). He noted that deciding that issue served no useful purpose and remained wholly academic, since it was up to the Government to rectify the alleged inconsistency. 

Looking Ahead

This uncertainty has left UK practitioners waiting for government intervention. In September 2025, the Government launched a major designs consultation aimed at simplifying the current system. The consultation closed in November 2025 and a response is expected in July 2026.