Federal Court of Justice
No art, no copyright protection: BGH judges Birkenstock
As you stand by the Birkenstock sandals – everyone knows the design. But are the shoes of works of art and are therefore protected by copyright? The BGH says: No.
Art is often in the eye of the viewer. This was also evident on Thursday at the Federal Court of Justice (BGH) in Karlsruhe. The fashion company Birkenstock wanted to determine a copyright protection for its classic sandals by the Supreme German Civil Court. It considers the models to be works of applied art. But the BGH decided differently. After the verdict, Birkenstock did not give up hope.
Specifically, Birkenstock’s lawsuits were involved in Karlsruhe against competitors who sold similar shoe models to their own. The fashion company, headquartered in Linz am Rhein in Rhineland-Palatinate, saw this an injury to copyright. Among other things, it complained of injunction, annihilation and recall of alleged imitations.
BGH confirms judgments from Cologne
The lower courts disagreed. While the Cologne Regional Court initially recognized the shoe models as works of applied art and took up the complaints accordingly, they were later rejected by the Higher Regional Court (OLG) Cologne at the appeal of the defendant. The court could not determine artistic achievement. Birkenstock made a revision against the decision – so the case landed in Karlsruhe.
The BGH now confirmed the judgments of the OLG. The court set the right standards when assessing. For example, it was correctly assumed that a purely craftsmanship with formal design elements was not sufficient for copyright protection. Rather, the scope for design must be artistically exploited to a certain extent. This was not found in the Birkenstock sandals. The burden of explanation lies with the one who claims copyright protection.
The Wortmann Group, which includes the “Shoe.com” GmbH, which was complained about in the process, rated the judgment as a profit for the shoe and fashion industry. “In the event of the procedure of the procedure, the claimant’s burden of explanation in relation to the necessary artistic activity would have been significantly reduced, which would have led to an alignment of design law and copyright with inconceivable consequences for the fashion industry,” said partner Jens Beining.
Copyright protects creative services
Copyright initially gives the creator of a work the exclusive rights of use on this property. Third parties must not reproduce or reproduce it without permission. This protection remains up to 70 years after the author’s death. Karl Birkenstock – the inventor of the Birkenstock sandals – is still alive. In comparison: the protection period according to design law is a maximum of 25 years. In contrast to design law, there is also no formal entry in a register for copyright protection.
In contrast to patent or design law, copyright is used to protect creative services. Protected by copyright, music, written works, films, photographs, computer programs – as well as works of the visual or applied art are thus protected.
“The Porsche under the sandals”
Most of art would think about pieces of music or novels, explained Birkenstock spokesman Jochen Gutzy after the verdict. However, the legislature also cleared the way for the protection of everyday objects through the concept of applied art. German courts have confirmed this over the years – such as a Porsche model. Birkenstock also sees itself in this tradition. “If you like, we are – at least legally – something like the Porsche under the sandals.”
Specifically, the BGH dealt with four models: “Arizona” (the sandals with two wide straps that were mentioned in 2023 in the Hollywood film “Barbie” special mention), “Madrid” (with a belt), “Gizeh” (with toe separator) as well as the clog “Boston”. According to the company, it is the classics that typically connect their customers to the brand.
Birkenstock continues to fight
According to the BGH’s judgment, these classics do not have copyright protection. For Birkenstock, the legal struggle is not over. “Of course, the judgment is a disappointment today,” said Gutzy. Nevertheless, Birkenstock wants to continue to do so in court against alleged imitators – even abroad. “We will also continue to take the paths to the national courts in Italy, France, in the Netherlands.”
Birkenstock even wants to bring the topic to the European Court of Justice (ECJ) in Luxembourg. In the EU countries, different standards are scheduled for copyright law. “In Holland, for example, a sauce donor has been recognized as protected by copyright,” explained Birkenstock lawyer Konstantin Wegner. “In this respect, a clarifying word of the ECJ may be required at the end of the day.”
dpa
Source: Stern
