When the first Birkenstock sandal was introduced in the 1960s, there was initially no idea of the brand’s current success. But decades later, the health sandal has developed into a trendy shoe.
According to the fashion company, the sandals are works of art and as such are protected by copyright. The Federal Court of Justice (BGH) in Karlsruhe is now taking a closer look at this.
On Thursday, the First Civil Senate will deal with three lawsuits filed by Birkenstock against competitors. They had sandals on offer that looked very similar to their own models. The shoe manufacturer, headquartered in Linz am Rhein in Rhineland-Palatinate, sees this as a violation of copyright law. Because Birkenstock sandals are works of applied art that should not simply be imitated. Whether the highest German civil court will go along with this will probably only be decided later. (Ref. I ZR 16/24)
Copyright initially gives the so-called creator of a work exclusive rights to use this object. Third parties are not allowed to reproduce or copy it without permission. Unlike patent or design law, for example, copyright serves to protect creative achievements. Written works, films, computer programs – as well as works of fine or applied art – are protected by copyright.
What is “art”?
The term “art” in the context of copyright law often gives the impression that it is only about art without a purpose – like a painting or a piece of music, says lawyer Konstantin Wegner, who has represented Birkenstock in court for years. “However, it has been recognized in copyright law for decades that outstanding design of everyday objects can also be protected by copyright.” Courts have already decided this on lamps in the style of the Bauhaus art school, furniture by the architect and designer Le Corbusier and a Porsche model.
Birkenstock also sees its own sandal designs in this tradition. Specifically, there are four models: “Arizona” (the sandal with two wide straps, which was particularly mentioned in the 2023 Hollywood film “Barbie”), “Madrid” (with one strap), “Gizeh” (with toe separator) and the “Boston” clog. According to the company, it is the classics that consumers typically associate with the brand.
Wegner says that it is both individual elements such as buckles, materials or the strap guide, as well as the combination of these elements, that make the sandal models works of applied art and justify copyright protection. The design by inventor Karl Birkenstock in the Brutalist style was unique when the classics first appeared.
OLG saw no artistic achievement
This new approach was met with criticism at the Düsseldorf shoe fair in the 1960s. At the time, Birkenstock was insulted by other exhibitors as being a crossroads,” says Steffen Schäffner, head of the Intellectual Property department. Because of the difficult start, it is important to the company that others do not simply attach themselves to its success. “We are convinced that Karl Birkenstock has created something that is accessible to copyright protection,” said Schäffner.
However, the lower courts were divided on this. While the Cologne Regional Court initially recognized the shoe models as works of applied art and upheld the lawsuits, they were later rejected by the Cologne Higher Regional Court following an appeal by the defendant companies. The court ruled that the shoes did not meet the requirements for a work. No artistic achievement could be identified.
The coffee company Tchibo sees things similarly – which no longer only offers coffee. The Hamburg company is one of the three defendants who sold Birkenstock-like models and are now in court. A spokesman explained that the company does not see the level of creation required for copyright in the Birkenstock models.
Functionality versus creativity
“According to the case law of the ECJ and the BGH, whether something is protected by copyright as a work is determined by whether the object is an original – i.e. the author’s own intellectual creation,” explains Jens Klaus Fusbahn, a specialist lawyer for copyright and media law the personality of the author and his free, creative creative decision are expressed.
Unlike fine art, applied art faces the challenge of having to fulfill a functional mission, says Fusbahn. For the question of copyright protection, the decisive factor is whether a certain freedom of design was exploited artistically beyond the technical constraints. The Cologne Higher Regional Court denied this in the Birkenstock proceedings due to a lack of sufficient presentation of the creative process and the artistic design decisions made.
This is by no means the first case in which Birkenstock has taken legal action against imitations. In the past, the manufacturer invoked design or competition law. If, according to the BGH, copyright now applies, it would have several advantages for the company. “Copyright is an incredibly long-lasting right because it still provides protection 70 years after the author’s death,” explains Fusbahn. In addition, in contrast to design law, for example, no formal entry is necessary. (dpa)