Germany’s Federal Court of Justice ruled this week that Birkenstock sandals are not copyrightable, in a decision that could cost the German shoemaker decades of IP protection. The court found that the designs lacked the necessary artistic individuality beyond functional elements. Under EU law, design protection is limited to 25 years, while copyright lasts for 70 years after the author’s death. Birkenstock criticized the ruling as a missed opportunity, and announced hopes to see further answers from the EU’s top court.
Germany’s Federal Court of Justice ruled yesterday that Birkenstock's sandal models do not qualify for copyright protection as works of applied art — toeing the line between design and copyright protection.At the heart of the widely watched ruling is the distinction between all-encompassing copyright and shorter-term design protection which can be challenged at any time under EU law.
“For copyright protection, a level of design must be achieved that allows individuality to be recognized,” the court said in a press release. The full ruling is expected in the coming weeks.
The case concerns four Birkenstock sandal models that the German company sought to protect under copyright law. In three appeal proceedings, Birkenstock argued that its designs met the threshold for copyright protection, but the court rejected the claims. It upheld the Cologne Higher Regional Court’s finding that copyright requires a sufficient level of artistic creativity beyond functional or technical constraints (see here).
— Top EU court—
Since Birkenstock did not demonstrate that its designs were created with the necessary artistic individuality, its claims for injunctive relief, damages, and other remedies were dismissed.
The well-known German sandal maker called the decision “a missed opportunity for copyright protection in Germany.”
“The German legislature itself has stipulated that outstanding designs of everyday objects can be protected as works of applied art, without, however, specifying any more precise criteria,” Birkenstock spokesperson Jochen Gutzy said in a statement to MLex.
A ruling in favor of Birkenstock would have created “legal certainty,” Gutzy argued, adding that Germany faces “competitive disadvantages” compared to EU countries where intellectual property protection requirements are less stringent.
Birkenstock said it would work toward hearing an interpretation from the EU’s top court, the Court of Justice, which can receive referrals from national courts. The statement said Birkenstock “will continue to fight for its position in court and exhaust all legal means to defend itself against imitations of its iconic products.”
— Individuality and personality —
The German court’s reference to “individuality” in the Birkenstock ruling traces back to a 2019 EU Court of Justice decision in Cofemel, a case in which fashion label G-Star Raw accused another company of copyright infringement. That ruling established that copyright protection requires a work to reflect the “personality of its author, as an expression of his free and creative choices.” The forthcoming full ruling is expected to clarify whether that standard applies in Birkenstock’s case.
Richard Dissmann, intellectual property litigator and a partner at Bird & Bird, told MLex that the Birkenstock ruling had implications beyond the case itself. "It’s about something that has kept IP lawyers awake in Europe for the past five or six years: How can we reconcile design protection and copyright protection?”
Under EU law, design protection is limited to 25 years, while copyright lasts for 70 years after the author’s death.
“Why should something be limited to 25 years with registration, fees, invalidity counterclaims, and prior art issues, while copyright lasts for an average of 100 years globally — without registration, fees, or the option to cancel it?” Dissmann said. “The Birkenstock case highlights this fundamental question.”
“The real test is: If you make free and creative choices, as per Cofemel, does that mean the personality of the author is reflected — and thereby, does it warrant copyright protection?” Dissmann said.
EU case law suggests that copyright is reserved for works that meet the EU’s definition under copyright law, typically granted to authors, performers, producers, and broadcasters — a right that, for now, has not been extended to Birkenstock.
The full ruling will shed more light on the requirements needed for products from creators or companies that seek protection beyond the basic protections offered by EU design rights. In the meantime, the court's decision may bring into question whether copyrights apply to other products on the border of design and copyright applicability.
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