Another Belgian judgment applying #Mio

In a judgment rendered last week, the Brussels Court of Appeal denied copyright protection for both a cosmetic treatment device and its graphical user interface (GUI).

Relying on the CJEU’s hashtag#Mio / Konektra case law, the court recalls that copyright protection requires free and creative choices reflecting the author’s personality, which cannot be presumed and must be identified concretely. Mere aesthetic appeal, elegance or a distinct visual impression are insufficient. Copyright originality must not be confused with novelty or individual character under design law (express reference to Cofemel).

The device

The features relied upon were largely technically or functionally determined (e.g. central rectangular screen, slightly tilted display, metal plate for branding, handpiece holders, footed structure).

Where choices were possible, they were considered banal and commonplace, consistent with pre‑existing design trends (including tablet‑like devices such as the iPad and prior registered designs).

Even the combination and arrangement of these elements was not regarded as original, as it did not confer a unique expressive character. The court stresses that the mere existence of alternative designs does not, in itself, establish sufficient creative freedom.

The GUI

While a GUI may in principle qualify for copyright protection under general copyright law (and not as a computer program), this requires an intellectual creation reflecting free and creative choices.

Most GUI elements were found to be functional and standard: brand placement, navigation buttons, time/date/help/home functions, menus and submenus in bands, sliders and “+ / –” controls, progress indicators, start/stop buttons, and colour changes reflecting user interaction. The layout, typography and blue‑white colour scheme were considered typical of GUIs around 2013. Even formally free choices (e.g. ellipsoid buttons or decorative background elements) were insufficient to confer originality.

Conclusion on copyright

Neither the device nor the GUI met the originality threshold under EU copyright law. The court therefore did not even examine infringement.

But unfair competition still bites

The court did grant protection against slavish and parasitic copying under Belgian unfair competition law (Arts. VI.104–105 WER) and Article 10bis of the Paris Convention. The device, GUI and consumables were copied almost identically, creating a quasi‑identical overall impression and a real risk of (direct and indirect) confusion among professional users, supported by evidence of actual market confusion. The conduct was also characterised as parasitic free‑riding.

Key takeaway

The absence of IP protection does not legitimise confusion‑creating and parasitic copying.

A useful judgment for anyone navigating the fine line between copyright, design law and unfair competition in product and interface design. nother Belgian judgment applying #Mio