No sole right – German court rejects copyright claim on Birkenstocks
On February 20, 2025, the German Federal Court of Justice ruled in a groundbreaking decision that Birkenstock sandals do not deserve copyright protection.
Birkenstock attempted to ban the sale of sandals that Birckenstock claimed were copies of four of their well-known models: the Arizona (with two wide straps), the Madrid (with one strap), the Gizeh flip-flop and the Boston clog. However, the Court rejected the claim and ruled that these designs are not eligible for copyright protection.
According to the judge, copyright only applies if a design has a certain degree of creative freedom and an artistic touch. When a product design is largely determined by technical requirements, rules or other restrictions, it cannot be protected by copyright. Only if a design is truly original it falls under copyright protection. Craftsmanship alone is not enough – it must also radiate a certain degree of creativity. The burden of proof for this lies with the party claiming copyright. In this case, Birkenstock was unable to prove to the highest German court that their designs have sufficient originality.
Copyright protection offers major advantages: registration is not necessary, and it offers protection against the reproduction and duplication of a design for up to 70 years after the death of the creator. But it now appears that this protection is not always available for product design.
However, producers do not have to stand empty-handed. In addition to copyright, another system exists specifically intended for the protection of product design: design rights. Design rights offer protection for up to 25 years but without registration only three years. It is therefore understandable that companies prefer to make use of the longer-term protection offered by copyright. Another hurdle is that a design registration must be filed within one year of the product's market introduction. The German court's decision shows that failure to register a design can be a risky strategy. At least in Germany.
This decision could possibly be seen as a prelude to more clarity about the requirements product design must meet to qualify for copyright protection. This is important because there are major differences between EU countries in this area. In the coming months, the European Court of Justice is expected to rule on two pending referrals concerning copyright protection of industrial design – both relating to furniture. The German judge has referred on a matter about the modular design cabinets by USM Haller, and the Swedish judge about the tables by Asplund. The European Court is expected to provide more direction this year on the criteria for copyright protection of industrial design and how this protection relates to design rights. The German judge ruling on the Birkenstock sandals was apparently so confident in his decision that he chose not to wait for guidance from the European Court.
If the European Court chooses to follow the German judge, companies would be even more inclined to register their products in the design register. After all, starting a lawsuit based solely on a copyright claim for a product design may prove risky. The combination of design and copyrights provides you with the best of both worlds, including a backup in the unfortunate event that the copyright claim is denied. Would you like expert advice and to brainstorm on you personal situation with a specialist? Contact us
Author: Ellen Gevers
Bio: Ellen is a trademark attorney and managing partner at Knijff, and a welcome speaker and writer in the world of IP. Ellen has spoken at conferences organized by ECTA, INTA, MARQUES and BMM, and her articles are published in the BMM and INTA Bulletin. Ellen is involved as a teacher and board member in the educational program for Benelux Trademark and Design Attorneys (BMM) and paralegals. Next to that, Ellen is involved in the weekly publication of the INTA Bulletin. It’s safe to say Ellen knows what she’s talking about.