As a half-German, I have long had a love-hate relationship with the nation’s iconic Birkenstock footwear. Comfortable and practical? Undoubtedly. Stylish? Until recently, a resounding no.
It was with some bemusement that I saw Birkenstocks boom as fashion items in recent years, even getting a Barbie stamp of approval.
Fashionable they may now be, but they are not works of art protected by copyright, according to the recent decision of Germany’s highest court, the Bundesgerichtshof.
A member of the Birkenstock group sued three of its competitors who sell copycat sandals, seeking injunctive relief, information, damages, and the recall and destruction of the sandals.
At first instance, a regional court (Landgericht) found in favour of Birkenstock. However, on appeal, a higher regional court (Oberlandesgericht) reversed the decisions, finding that the sandals were not entitled to copyright protection as works of applied art.
Birkenstock’s appeal to the Bundesgerichtshof was unsuccessful, with the court holding that the Oberlandesgericht was correct in finding that: (i) for copyright protection to apply, there must be such a degree of design that the product displays some individuality; and (ii) Birkenstock had not demonstrated that this was the case for the sandal models in question.
In New Zealand, copyright subsists in ‘original’ works; that is works which are the product of more than minimal time, labour, skill and judgment. An ‘original’ work does not need to be ‘novel’, or new; copyright protects the effort that goes into creating ‘original’ works, not the appearance of articles depicted in works. The threshold to qualify as ‘original’ is very low.
Furthermore, New Zealand’s copyright laws are somewhat unusual in that they offer protection over industrial designs that is separate to any protections that may be available under registered design laws.
In New Zealand, the drawings for Birkenstock’s shoes would constitute copyright works (unless copied from somewhere else or unless copyright had expired). By indirectly copying those drawings (i.e. by copying a Birkenstock shoe), a competitor in New Zealand could be found to have breached Birkenstock’s copyright in the underlying drawings. However, except for works of artistic craftsmanship, the duration of copyright in such works is 16 years from the date on which the design was first industrially applied anywhere in the world. Founded in 1774, it would only be Birkenstock’s more recent drawings that would still be eligible for copyright protection under New Zealand law.
Returning to the Bundesgerichtshof’s decision, it is worth noting that the court does not appear to have grappled with the arguably more controversial issue of whether it is ever permissible to wear sandals with socks. Is it an unforgiveable crime against fashion or does comfort rule? As with the copyright position, I strongly suspect that the answer to that question would differ between New Zealand and Germany. It’s a clear “nein” from me.
