In a headline-making decision on Thursday, Germany’s Federal Court of Justice ruled that Birkenstock’s iconic sandals do not qualify as works of art and therefore, are not entitled to copyright protection. The decision from the highest court of civil jurisdiction in Germany, which follows from a series of legal battles initiated by Birkenstock against competitors producing similar-looking sandals, could have significant implications for the fashion industry, particularly concerning the protection of product designs in Germany.
A Bit of Background: NYSE-traded Birkenstock filed a number of copyright-centric lawsuits in Germany on the basis that its “sandal models are copyrighted works of applied art,” which the defendants – including German apparel/accessories brand Tchibo – infringed by way of lookalike sandals of their own.
> Under German law, design protection lasts for up to 25 years, whereas copyright protection endures for 70 years after the creator’s death. Birkenstock sought to classify its sandals designs as art to benefit from the more extensive protection period. With this legal avenue now closed, the company may need to explore alternative strategies, including on the trademark front, to safeguard its designs from imitation in its native country.
The cases landed before the Civil Chamber of the Federal Court of Justice, which was tasked with determining whether Birkenstock’s sandals are works of applied art subject to the copyright protection, after the Court of Appeal dismissed the claims waged against the defendants. The Court of Appeals held that the Birkenstock sandals do not meet the requirements of a work set by the Court of Justice of the European Union and the Federal Court of Justice, which require that shoe models “represent an artistic achievement in order to enjoy copyright protection.”
No Protections for Birkenstock
Upholding the Court of Appeals’ finding, the Civil Chamber of the Federal Court of Justice held that it “cannot be determined here” that Birkenstock’s sandals rise the necessary level of creativity to be subject to copyright protection. “The creative scope for design is limited by the purpose of use of a health sandal oriented to the natural gait. Artistic decisions could not be derived from the objective appearance of the sandals. A mere choice between different design options is not sufficient,” the court stated in its February 20 decision.
As such, presiding Judge Thomas Koch, writing for the court, stated that Birkenstock’s copyright infringement claims are “unfounded because [the sandals] are not copyright-protected works of applied art.”
The high court’s decision is not necessarily out of left field. This is “an expected outcome and a fresh decision regarding works of applied art,” says Olivia Petter, an attorney at HGF Europe LLP. “The court set the threshold for creativity in the area of health sandals … From my point of view probably correct when bearing in mind this purpose of the sandal. But what would have happened, if Birkenstock had defined its sandal as being ‘the latest hottest fashion must-have’ instead of emphasizing health aspects?”
Petter noted that the entirety of the court’s judgment has not yet been published and will “shed more light on the [court’s] reasons” in due time.
While this is the latest round in the ongoing clash, it may not be the last, as counsel for Birkenstock, Konstantin Wegner, hinted at further litigation, saying, “We want to add arguments in these pending proceedings.”
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