In a recent ruling, Germany’s Supreme Court settled one question for now; despite people’s adoration for Birkenstock sandals, they are not products of art and, therefore, do not merit copyright protection. The law behind this decision has a far-reaching effect on both the fashion and design industries, as it serves as a perfect example of where copyright law ends, and large scale mass-production begins.
Background
Birkenstock has been popular for decades, making comfortable, cork-soled sandals. Fashion, which initially was a complementary business to orthopaedic shoes, has evolved into a global trend with many high-profile people, including Hollywood celebrities and college students, showcasing these products. Nonetheless, even with their widespread acceptance, Birkenstock still wanted more: to have their designs protected for a long period of time. In Germany, design patents (this kind of patents protect the visual appearance of a product) expire after a period of 25 years. This meant that Birkenstock’s evergreen designs, some of which dated back to the 1970s, were no longer under patent protection. In order to keep the competitors from the sandals which are copies of theirs, Birkenstock tried another way: they stated that their designs were pieces of art, hence copyright laws should also protect them. Copyright protection lasts 70 years after the creator’s death, a more extensive protection compared to design patents. However, the court didn’t entertain this argument. Germany’s Federal Court of Justice was in the position to judge whether Birkenstock’s shoes are something more than shoes of high quality. Germany’s Federal Court of Justice was faced with the question of whether Birkenstock’s sandals were more than merely well-made shoes.
The question of dispute was: Are they “works of applied art” under German copyright law? If you want to secure copyright for a product, which is qualified by the applied art, it has got to show an immense creative artistic talent. To be more precise it can’t be just a good design—it has to be something that stands out as a creative piece, regardless of its function.
The Birkenstock case was resolved in the company’s favor and the court cited three main arguments for that:
Function prevails Over Creativity—The Birkenstock sandal is engineered to comfort, reinforce, and lto be light. The court concluded that these functional attributes were an essential part of the design and were more important than any other aesthetic sense.
Not Artistically Deserving Enough – Even if Birkenstocks are creative, they do not rise to the level of artistic merit required for copyright protection. Although they are voguish and distinguishable, they are not a direct comparison to sculptures, paintings, or other art forms.
Burden of Proof – The task of Birkenstock was to verify that its designs have protective copyright. The court discovered that they could not bring about convincing evidence that their sandals were art pieces beyond their functional purpose that was necessary.
What This Means For Designers & Businesses?
This seemingly is not a singular instance regarding copyright problem of Birkenstock—it establishes a norm for other firms to do the same thing to their designs.
Art Should Not Be Confused With Good Design – Just because it looks trendy and appealing doesn’t mean that it is individualised with the aid of copyright. Supposing that the object’s design is essentially utilitarian, the copyright protection will most likely not apply.
Strategically Building A Robust IP Protocol – In the case the firm has the problem of design theft, they may opt to find a solution to copyright the items to protect them. Copyright doesn’t always work, so sometimes trademarks are more reliable. Not only they protect the brand, but patents also insure functional creativity.
Tougher Competition From The Market – The absence of relevant copyright materials by Birkenstock implies that the competitors are free to design sandal styles that look closely alike. However, the condition is that they bear no resemblance to the trademarks or other forms of intellectual property protection of the original product. This will spark the beginning of a new era of stiff rivalry and innovation in the footwear industry.
The defeat of Birkenstock at the court is a support for the doctrine that not all is art that is brilliant enough—and copyright does not give an infinite term to all the intellectual works. Though I am sure that those who are deeply involved in this matter and want to have a bone to pick with the innovators, will not stop trying to manoeuvre their products around the law, the situation is indeed worrying for them. They don’t seem to notice that intellectual property law is designed for different stakeholders; it is aimed at fostering creativity and innovation, but on the other hand, it also allows fair competition.
Authors: Mahima Gupta & Smita Pandey