Is it permissible to copy a functional design?

It is every designer's nightmare: you launch a product, and shortly afterwards a competitor launches an almost identical version. Can this be dealt with legally? The answer is nuanced: purely functional designs often do not enjoy copyright protection, and imitation is in principle permitted under the freedom to conduct a business, as long as there is no confusion or unfair practices.

The facts and the stakes

In a ruling by the Court of Appeal in Ghent on 2 June 2025, the central question was whether playground equipment—such as a bench in the shape of a boat, climbing wall panels, and a dance stage—is protected by copyright.

The plaintiffs, designers of this playground equipment, claimed that a competitor had copied their products and demanded a sales ban on the grounds of copyright infringement and, alternatively, parasitic competition (infringement of fair market practices. The competitor defended itself by arguing that the design of these objects was banal or purely technical and that there were sufficient differences to prevent confusion.

The Court's decision

The Court of Appeal dismissed the designers' claims. The reasoning was twofold:

1. No copyright: The Court ruled that the playground equipment in question did not meet the requirement of “originality”.
   • With regard to the boat, the Court ruled that the idea of a (half) boat as a bench is not inventive and remains close to the “primitive form” of a boat. The addition of clichés such as an anchor or lifebuoy does not make it an original intellectual creation.
   • With regard to the climbing wall and the dance stage, the Court ruled that the design was largely determined by technical considerations (utilitarian). Technical necessity—such as recesses to move a stage with a forklift—excludes copyright protection.
2. No parasitic competition: Since no intellectual property rights had been infringed, the court fell back on the principles of free competition. It found that the competitor had made sufficient creative efforts to distinguish itself (e.g., by using different colors or construction methods), so that there was no slavish imitation likely to cause confusion.

Legal analysis and interpretation

This ruling confirms the strict application of European case law (in particular the Cofemel and Brompton Bicycle rulings of the Court of Justice of the EU) into Belgian law.

The criterion of originality and the technical exception

To be eligible for copyright protection, a work must be the author's “own intellectual creation” that reflects their personality through free creative choices.

The Court emphasizes the technical exception: when the shape of an object is determined by technical considerations, rules, or limitations that leave no room for creative freedom, copyright protection is not possible. Copyright is not intended to monopolize technical ideas or solutions; that is what patent lawis for. Even if there are multiple ways to achieve a technical result (the doctrine of multiple forms), this does not automatically mean that the chosen form is original. If the choice of form serves solely to achieve the technical effect, protection lapses.

The threshold for parasitic competition

Article VI.104 of the Code of Economic Law (CEL) prohibits acts that are contrary to fair market practices. However, the basic principle remains freedom of copying: anyone who does not have exclusive rights (such as a patent or copyright) may be imitated. Unlawful imitation or parasitic competition only occurs if the imitation causes unnecessary confusion or if a competitor benefits from the investments of another without making any effort themselves (known as “free riding”), under circumstances that are contrary to fair trade practices. The Court ruled strictly in favor of the plaintiff: approaching each other's customers or operating in the same region is inherent to free competition and is not unlawful in itself.

What this specifically means

This ruling has consequences for various players in the market:

• For designers and manufacturers: Do not blindly rely on copyright for utensils (such as furniture or playground equipment). If your design is primarily functional, a judge will likely reject copyright protection. Consider other forms of protection such as a registered design (design and model rights) or a patent for technical inventions before you make the product public. In addition, ensure that your product has a very clear ‘face’ of its own that is not merely a result of its function.
• For competitors: Copyright never protects ideas or styles, only the concrete design. You are therefore free to draw inspiration from the concept of a protected work (for example, “a sofa in the shape of a boat”), as long as you do not copy the specific, original features of the protected work. Ensure that your own design is sufficiently distinctive and avoid slavish imitation that could cause confusion. In this case, the Court ruled that the competitor had developed the idea in its own way (different colors, different construction), which made it permissible.
• For legal practice: The proof of “originality” in utensils is being assessed more and more critically. The mere fact that aesthetic choices have been made (such as a “frivolous wave shape”) is insufficient if these do not clearly bear the personal stamp of the creator.

Frequently Asked Questions (FAQ)

Can I simply copy a competitor's product?
In principle, yes, unless the product is protected by an intellectual property rights (such as copyright, design rights, or patents). If there is no protection, freedom to conduct a business applies. However, you may not cause confusion among consumers (slavish imitation).

What is the ‘technical exception’ in copyright law?
This means that forms that are solely necessary to achieve a technical effect are not protected by copyright. Copyright protects creative expression, not technical solutions. If form and function are inextricably linked, protection lapses.

When is a design considered ‘original’?
A design is original if it is the author's own intellectual creation. This requires that the author has been able to make free and creative choices that leave his personal mark on the work. Banal forms or forms dictated by function are not original.

Conclusion

The distinction between inspiration and infringement is often thin, especially in the case of functional objects. This ruling shows that judges in Belgium are reluctant to use copyright as a tool to prevent competition in technical or mundane forms. For designers, a proactive intellectual property strategy is crucial.