The copyright and design protection interplay post-<i>Cofemel</i>: continuity or recalibration?

Abstract The Cofemel judgment of the Court of Justice of the European Union (CJEU) was issued against a backdrop of uncertainty regarding the protectability of fashion designs by copyright as works of applied art. The initial reflex to this decision, thought to have a radical effect on the copyright–design protection overlap, was a concern that copyright might overtake design rights. This article investigates whether such an outcome has indeed materialized in the post-Cofemel reality of the fashion industry, employing an empirical analysis. Through an evaluation of EUIPO design registration data and interviews with legal practitioners working with fashion brands, the IP landscape in this domain is explored, drawing conclusions concerning the preferred means of protection for fashion designs, before and after Cofemel. Did the CJEU affect the fashion industry’s legal practice or is this Sisyphean task of iterative referrals regarding the fate of works of applied art in vain? And more specifically, was Cofemel’s effect revolutionary, after all, or was the discourse surrounding its significant impact merely an echo chamber within IP scholarship? Overall, the article reflects on the future of fashion design protection from a copyright perspective, also focusing on pending CJEU referrals on works of applied art, while also considering the treatment of derivative works under copyright law and their relevance to the fashion industry.