Federal Court of Justice: Are Birkenstock sandals art? BGH examines copyright protection

Are Birkenstock sandals copyrighted works of applied art? The Federal Court of Justice (BGH) in Karlsruhe dealt with this question. Specifically, the highest German civil court was concerned with three lawsuits brought by the shoe manufacturer against competitors who had sold sandal models similar to their own. It initially remained unclear when the Senate would deliver its verdict. (Ref. I ZR 16/24, I ZR 17/24, I ZR 18/24)

Birkenstock saw the alleged imitations as a violation of copyright. The fashion company, headquartered in Linz am Rhein in Rhineland-Palatinate, considers its sandals to be protected works of applied art. His lawsuits at the Cologne Higher Regional Court were recently unsuccessful. The court ruled that the shoes did not meet the requirements for a work. An artistic achievement cannot be determined.

According to the BGH’s initial assessment, the OLG applied the correct standards in its assessment, explained the presiding judge, Thomas Koch, in the oral hearing. It correctly required a certain level of design for the definition of a work of applied art. The burden of proof for copyright protection lies with the plaintiff manufacturer.

Birkenstock’s lawyer objected. The Higher Regional Court used an artificial term that goes well beyond the definition in the previous case law of the Federal Court of Justice and the European Court of Justice. It was based on the fact that art must have no purpose and should not pursue economic goals. But it cannot be the case that an object is not art just because it is supposed to sell well.

Copyright gives the creator exclusive rights to use their work. The protection remains in effect until 70 years after the death of the author. Unlike design law, there is no need for a formal entry in a register.