The Birkenstock sandal is a work of art - how does the BGH assess this in legal terms?
The Birkenstock sandal is a work of art - how does the BGH assess this in legal terms?
It is undisputed that Birkenstock sandals are something special. However, the company is now taking legal action to have its "classics" recognized as a work of art by the Federal Court of Justice. This is not about vanity; the legal classification has tangible economic consequences.
Why does Birkenstock choose this path?
Birkenstock is seeking copyright protection for its sandals in order to protect the iconic design from imitations. As the company has not yet applied for protection under trademark or design law, copyright is the last option for achieving long-term protection. Previous attempts to secure protection via competition law or patent law have been unsuccessful. With copyright, the protection of models such as "Arizona", "Madrid", "Gizeh" and "Boston" could be maintained for up to 70 years after the death of the creator. The sandal, which has evolved from a slipper to a status symbol, should thus be recognized as a work of art.
What is the legal situation?
In principle, copyright protection of design objects is possible if they constitute a "personal intellectual creation". In the case of everyday objects such as sandals, however, there are stricter requirements for artistic design. A formal entry in a register is not required, but the manufacturer bringing the action must comprehensively demonstrate that the design is worthy of protection. Unlike design law, which was often used for fashionable objects in the past, copyright law offers much more comprehensive and long-term protection. In other countries, such as the Netherlands or France, shoes and sandals have already been successfully protected as works of art.
How have courts ruled so far?
The lower courts had different opinions. The Regional Court of Cologne recognized the Birkenstock models as works of applied art and affirmed protection. The Cologne Higher Regional Court, on the other hand, dismissed the claim and argued that the artistic achievement of the sandals was not sufficient. The court found that the functional aspect dominated in the case of applied art and that creative freedom was not used 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 be dependent on commercial objectives.
What will the BGH do?
The Federal Court of Justice is leaning towards the opinion of the Cologne Higher Regional Court that the sandals do not have a sufficient "level of design" to be protected as works of applied art. However, the final decision is still pending and is expected in the coming weeks. If the BGH rejects the claim, copyright protection for the Birkenstock sandals would finally be off the table. However, recognition could have far-reaching consequences for the protection of design objects and fashion items in Germany. It would open the door for similar cases and strengthen the importance of copyright in the fashion industry in the long term.
What does the decision for Birkenstock mean?
If the Federal Court of Justice (BGH) were to recognize copyright protection for the Birkenstock sandals, this would have far-reaching consequences for the company. Such protection would enable Birkenstock to take more effective action against imitations and preserve the exclusivity of its designs. This could strengthen its market position and further increase the value of the brand. In addition, copyright protection would apply for up to 70 years after the death of the designer, which represents a long-term advantage.
However, the BGH's assessment to date indicates that the required "level of design" for copyright protection may not be achieved. If the BGH rejects the claim, Birkenstock would still have the option of using design law or other protective mechanisms to protect its products from being copied. However, this could be associated with shorter protection periods and possibly higher hurdles.
The decision of the BGH will therefore not only be important for Birkenstock, but also for the entire design and fashion industry, as it could provide clarity on the requirements for copyright protection of utility objects.
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