Birkenstock sandals are not works of art, German court rules | Money News

The Birkenstock sandal is recognisable for its big buckles, wide-straps, and cork-made sole. But the shoes do not qualify as works of art, Germany’s highest civil court has ruled.

The German shoe company had filed a lawsuit against three competitors who sold sandals that were similar to their own, by claiming its products “are copyright-protected works of applied art” that may not be imitated.

But the case was dismissed, with Federal Court of Justice judge Thomas Koch calling the claims “unfounded” because the sandals are not copy-right protected.

In his ruling, he wrote that for copyright protection to apply, “a level of design must be achieved that reveals individuality”.

Under German law, copyright protection is valid for 70 years after the creator’s death, while design protection hinges on the product’s lifespan and ends after 25 years.

The legal distinction between design and art in German law lies in a product’s purpose. Design serves a practical function, while works of applied art require a discernible level of individual artistic creativity.

Birkenstock creator and shoemaker Karl Birkenstock, who was born in 1936, is still alive, but since he crafted his initial designs in the 1970s, some sandals no longer enjoy design protection.

As a result, lawyers for the company asked the court to classify the shoes as art.

Lawyer Konstantin Wegner argued the sandals had an “iconic design” and said there would be further litigation after the federal court of justice’s decision was announced.

The case has proved contentious, having been heard at two lower courts previously, which disagreed on the issue.

A regional court in Cologne initially recognised the shoes as works of applied art and granted the orders, but Cologne’s higher regional court overturned the orders on appeal, according to German news agency DPA.

The appeals court said it was unable to establish any artistic achievement in the sandal.

Once popular with hippies, tech enthusiasts and medical professionals, Birkenstock gained widespread attention after Australian actress Margot Robbie wore a pair of pink Birkenstocks in the final scene of the 2023 hit movie Barbie.

Has this happened before?

Historically, it is tricky for fashion pieces to be deemed as original works of art.

In the UK, to obtain copyright protection, works of fashion need to fall into one of the eight categories set out in the Copyright, Designs and Patents Act 1988.

Copyright is also different to trademark, the first protects the original creative elements of a design, like unique patterns, prints, or graphic designs, while the latter protects a brand’s identity like logos, names, and symbols that distinguish it from competitors.

One rare example of success happened in the Netherlands in 2004, and centred on perfume, not clothing.

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Small Dutch firm Kecofa Cosmetics was ordered by a court in 2004 in the city of Maastricht to stop producing, selling, stocking, importing and exporting its perfume Female Treasure, as its smell replicated Tresor, made by French perfume and cosmetics maker Lancome.

The court ruled at the time that Tresor is original and carries a personal stamp from the maker, and could therefore be considered a copyrighted work under the country’s Copyright Act of 1912.

Kecofa was also ordered to pay €16,398 to Lancome, plus all its profits from the sale of Female Treasure, according to court documents.

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