The Birkenstock sandal is a work of art—how does the Federal Court of Justice (BGH) assess this from a legal perspective?
The Birkenstock sandal is a work of art—how does the Federal Court of Justice (BGH) assess this from a legal perspective?
There is no doubt that Birkenstock sandals are something special. Now, however, the company is taking legal action to have its “classics” recognized as works of art by the Federal Court of Justice. This is not a matter of vanity; the legal classification has tangible economic implications.
Why has Birkenstock chosen this path?
Birkenstock is seeking copyright protection for its sandals to safeguard the iconic design from imitations. Since the company has not yet applied for protection under trademark or design law, copyright represents the last option for securing long-term protection. Previous attempts to secure protection through competition law or patent law have been unsuccessful. With copyright protection, models such as “Arizona,” “Madrid,” “Gizeh,” and “Boston” could remain protected for up to 70 years after the creator’s death. The sandal, which has evolved from a house shoe to a status symbol, is thus to be recognized as a work of art.
What is the legal situation?
In principle, design objects are eligible for copyright protection if they constitute a “personal intellectual creation.” In the case of everyday items such as sandals, however, the requirements for artistic design are more stringent. Formal registration is not required; however, the plaintiff manufacturer must comprehensively demonstrate that the design is worthy of protection. Unlike design law, which has frequently been used for fashion items in the past, copyright law offers significantly broader and longer-term protection. In other countries, such as the Netherlands and France, shoes and sandals have already been successfully protected as works of art.
How have courts ruled so far?
The lower courts held differing views. The Cologne Regional Court recognized the Birkenstock models as works of applied art and affirmed their protection. The Cologne Higher Regional Court, on the other hand, dismissed the lawsuit, arguing that the artistic merit of the sandals was insufficient. The court found that in applied art, the functional aspect predominates and that creative freedom had not been exercised beyond technical constraints. The Federal Court of Justice provisionally confirmed that the Higher Regional Court had applied the correct standards, but emphasized that the definition of art should not depend on economic objectives.
What will the Federal Court of Justice do?
The Federal Court of Justice (BGH) is leaning toward the view of the Cologne Higher Regional Court that the sandals do not exhibit sufficient “level of creativity” to be protected as works of applied art. However, the final decision has not yet been issued and is expected in the coming weeks. Should the BGH dismiss the lawsuit, copyright protection for Birkenstock sandals would be definitively off the table. Recognition, on the other hand, could have far-reaching consequences for the protection of design objects and fashion items in Germany. It would open the door to similar cases and significantly strengthen the role of copyright law in the fashion industry.
What does the decision to choose Birkenstock mean?
If the Federal Court of Justice (BGH) were to recognize copyright protection for Birkenstock sandals, this would have far-reaching consequences for the company. Such protection would enable Birkenstock to take more effective action against counterfeits and preserve the exclusivity of its designs. This could strengthen its market position and further increase the brand’s value. In addition, copyright protection would last up to 70 years after the designer’s death, which represents a long-term advantage.
However, the Federal Court of Justice’s (BGH) assessment to date suggests that the required “level of creativity” for copyright protection may not have been met. Should the BGH dismiss the lawsuit, Birkenstock would still have the option of relying on design law or other protective measures to safeguard its products against counterfeits. This, however, could entail shorter terms of protection and potentially higher hurdles.
The Federal Court of Justice’s decision will therefore be significant not only for Birkenstock but also for the entire design and fashion industry, as it could provide clarity regarding the requirements for copyright protection of utilitarian objects.
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