What is art? That judgment is often felled by the viewer. That was also apparent on Thursday at the Bundesgerichtshof (BGH) in Karlsruhe. The fashion company Birkenstock wanted to get copyright protection for its classic sandals from the highest German Civil Court of Court. It regards the models as works of applied art. But the BGH judged differently. Despite the verdict, Birkenstock has not yet given up De Hoop.
Specifically, in Karlsruhe, three lawsuits of Birkenstock against competitors who sold similar shoe models as those of Birkenstock itself. The fashion company with head office in Linz am Rhein in Rheinland-Pfalz saw a violation of the copyright. Among other things, it demanded a prohibition, destruction and recall of the alleged counterfeit products.
BGH confirms judgments from Cologne
The lower courts disagreed in the case. While the court in Cologne initially recognized the shoe models as works of applied art and the claims of Birkenstock assigned, these were later rejected by the Oberlandesgericht (OLG) Cologne. The Court of Appeal could not determine an artistic performance. Birkenstock went against the ruling in cassation – which ended up the case in Karlsruhe.
The BGH now confirmed the judgments of the OLG. The Court of Appeal had constructed the correct standards in the assessment. For example, it was right to assume that for copyright protection a purely traditional creation with formal design elements is not sufficient. The freedom of design must rather be used artistically to a certain extent. That was not established with the Birkenstock sandals. The burden of proof lies with the person who claims copyright protection.
The Wortmann group, to which the defendant “Shoe.com” -GMBH belongs to the procedure, considered the judgment as a victory for the shoe and fashion industry. “In the event of a different outcome of the procedure, the claimant’s burden of proof with regard to the required artistic activity would have been considerably reduced, which would have led to an equalization of design law and copyright with unforeseen consequences for the fashion industry,” said partner Jens Beining .
Copyright protects creative performance
The copyright (also called copyright) initially grants the creator of a work the exclusive user rights on this object. Third parties may therefore not reproduce or reproduce it without permission. This protection continues to exist for up to 70 years after the maker’s death. Karl Birkenstock-the inventor of the Birkenstock sandal-is still alive. For comparison: the protection duration according to the model rights is a maximum of 25 years. Unlike model rights, no formal registration in a register is required for copyright protection.
In contrast to patent or model rights, copyright serves to protect creative performance. Copyright protected, for example, music, writings, films, photos, computer programs – as well as works from visual or applied art.
“The Porsche under the sandals”
At Kunst, most think of music pieces or novels, Birkenstock spokesperson Jochen Gutzy explained after the verdict. However, the legislator has also cleared the way for protecting utensils through the concept of applied art. German courts have confirmed this over the years – for example with regard to a Porsche model. Birkenstock sees itself in that tradition. “If you want to say so, we are – at least legally – something like the Porsche among the sandals.”
Specifically, the BGH was about four models: “Arizona” (the sandal with two wide tires, which in 2023 received special attention in the Hollywood film “Barbie”), “Madrid” (with one band), “Gizeh” ( flip flipper) and the clog “boston”. According to the company, it is the classics who usually associate their customers with the brand.
Birkenstock fights further
Copyright protection does not have these classics after the BGH verdict. For Birkenstock, however, the legal battle is not over. “Of course the verdict is a disappointment today,” said Gutzy. Nevertheless, Birkenstock wants to continue to take legal steps against alleged imitators – also abroad. “We will also continue to follow the road to the national courts in Italy, France and the Netherlands.”
Birkenstock even wants to submit the subject to the European Court of Justice (ECJ) in Luxembourg. In the EU member states, different standards are used for copyright. “In the Netherlands, for example, a sauce dispenser as copyright is recognized,” explained Birkenstock lawyer Konstantin Wegner. “To that extent, perhaps an enlightening word of the ECJ is ultimately needed.”
