No Copyright Protection for Birkenstock Sandals

After the course of the hearing, it was already to be expected: Birkenstock sandals are not works of applied art within the meaning of Section 2 (1) No. 4, (2) of the German Act on Copyright and Related Rights (Urheberrechtsgesetz – “UrhG”) and therefore do not enjoy copyright protection. The BGH thus dismissed an action brought by the German company against imitators and confirmed the judgement of the Cologne Higher Regional Court (OLG), which had also rejected copyright protection. "The claims are unfounded because they are not copyright-protected works of applied art," said presiding judge Thomas Koch in Karlsruhe. The competing products remain on the market. The BGH paves the way for new competitors.

Copyright Law as a Protective Barrier against Imitators

Birkenstock had filed a lawsuit against three competitors who sold similar shoe models. The plaintiff is of the opinion that its sandal models are copyright-protected works of applied art and considered the defendant's offer to be an infringement of this right. Birkenstock sued in all proceedings for injunctive relief, information, damages as well as recall and destruction of the alleged imitations. Copyright protection is of particular importance to Birkenstock, as this protection is valid for 70 years after the death of the creator, whereas design protection ends after 25 years. The shoemaker Karl Birkenstock created the models in dispute back in the 1970s, meaning that design protection for the early Birkenstock models has already expired. Copyright would still exist and would therefore be an effective shield against imitators.

Birkenstocks are not Works of Art

The BGH has now ruled that the shoe models in dispute are not copyright-protected works. And without copyright protection, there is no copyright infringement. Copyright protection is not generally excluded for everyday objects such as sandals. They can be protected as works of applied art within the meaning of Section 2 (1) No. 4, (2) UrhG. However, Birkenstock fails to fulfil the requirements.

In contrast to a conventional work of art, a work of applied art has a utilitarian purpose. In order to enjoy protection, the object in question must be a work, i.e. a "personal intellectual creation" according to the wording of the law. The sandals must therefore have an individual character, the aesthetic content of which is recognised as an "artistic" achievement in circles with a certain affinity to art. For this to be the case, there must be creative freedom that has been utilised artistically – not just technically and functionally. A free and creative creating is excluded if technical requirements, rules or other constraints determine the design. Due to the dual character of a work of applied art – on the one hand as a work of art and on the other as a functional object of use – it is necessary to take a close look here.

The BGH initially considered that there was room for manoeuvre. In the next step, it examined whether Birkenstock had utilised this sufficiently. Put simply: Why does the shoe look the way it does? Is the design due to technical reasons or is it an expression of a creative achievement? The BGH was unable to provide a clear answer to this question: In the case of Birkenstock sandals, it could not be established that the existing creative leeway had been utilised to an extent worthy of protection or that the creation was merely characterised by technical considerations. However, Birkenstock has the burden of proof to demonstrate the extent to which the leeway for free creative decisions was utilised beyond function. Birkenstock is responsible for the BGH's lack of conviction.

What does this mean for similar cases?

In the case of works of applied art, it depends on the degree to which the creative leeway is utilised. Depending on the object of use, the remaining scope may vary, and the requirements may vary accordingly. The burden of proof lies with the party invoking copyright.

A look into the future

The BGH confirmed that the OLG had not erred in law in refusing copyright protection. This decision ensures that the creative market remains free and is not restricted by excessive copyright limitations. Compared to clothing, shoes in particular are subject to even greater functional constraints, as they have to fulfil certain requirements in terms of orthopaedic comfort. Sandals are therefore inherently subject to creation limitations, especially when additional health requirements are supposed to be met. The remaining room for creative freedom and innovation in shoe design is maintained by this decision. The variety of health sandals on offer is now expected to increase, as the market is legally more secure as a result of the decision. This will benefit not only designers and companies, who will be able to expand their range through innovative designs, but also consumers through a wider product range and more favourable prices. Excessive restrictions of free competition due to long-lasting copyrights will continue to be avoided.