NEWS

Birkenstock fails before the Higher Regional Court of Cologne in copyright dispute regarding “Arizona” and “Gizeh” sandals

OLG Cologne judgement of 26/01/2024, 6 U 89/23 – “Birkenstock”

 Contents

Sandal a work of applied art?

The plaintiff belongs to the Birkenstock group of companies and sells the following sandal models:

Birkenstock Urheberrecht
Birkenstock Arizona
Birkenstock Urheberrecht
Birkenstock Gizeh

The defendants operate an online shop that offers the following sandals:

In principle, sandals can be protected by copyright. Works that differ from pure art in terms of their purpose can enjoy protection as works of applied art pursuant to § 2 par. 1 No. 4 UrhG. The lower court ruled that the sandals were works of applied art within the meaning of § 2 par.1 No. 4 UrhG. The defendant appealed and won.

“Arizona” and “Gizeh” are no works under copyright law – but designs

Copyright protection can only be considered for the sandals if they have an aesthetic effect that is not due to its purpose but based on artistic freedom – so to what extent the object of use is artistically designed beyond its functional form.

It is a question of differentiating between design protected by design law for a maximum of 25 years and art protected by copyright for up to 70 years after the death of the creator.

Design and/ or work?

A design can also be protected by copyright, but it must fulfil the protection requirements for works of applied art. A work is the author’s own intellectual creation. The personality of the author must be reflected in the original – his free creative decision must be expressed.

The OLG clarifies that the long–lasting protection in copyright law is intended to do justice to the artist, who often waits a lifetime for this success. Product designs, on the other hand, are regularly amortized in shorter periods of time through industrial production and exploitation. Long–lasting protection would massively restrict competition for product innovations.

To the point

Not every utilization of an existing freedom of design justifies copyright protection. There are no clear criteria for distinguishing between works of applied art and designs. It must be carefully examined whether the object is an expression of artistic freedom.

MORE NEWS
AI / Trademark Law

AI-driven trademark abuse: Why “register first, use later” is becoming riskier

AI tools make it easier to identify unprotected brand names. For businesses, this can quickly become costly on platforms such as Amazon.

Munich Regional Court I: Google must answer for false AI responses

Munich Regional Court I prohibited Google from further disseminating false statements from an “AI Overview”. The AI response was attributed to the search engine operator as its own statement.
Trademark Law

BGH “Mehmet Efendi”: No exhaustion from placing goods on the market in Turkey – association agreement does not extend the EEA

The BGH confirms: Placing EU trade mark goods on the market in Turkey does not trigger exhaustion within the EEA. The EEC–Turkey association framework does not extend the territorial scope of exhaustion; parallel imports into the EEA can be prohibited without the proprietor’s consent.
Trademark Law

BGH “LA BIOSTHETIQUE”: German courts have jurisdiction for targeted online advertising – supplier disclosure may be disproportionate

The BGH aligns international jurisdiction for online trademark infringement with the target market: what matters is where the addressed consumers/traders are located—not the server location or the advertiser’s seat. It also held that disclosure of suppliers/prior owners may exceptionally be disproportionate where the infringement lies solely in the presentation of exhausted goods.
Trade Secrets

CJEU: Infringing “possession” covers stock held abroad—and also indirect possession

The CJEU clarifies that trade mark owners may prohibit “possession” under Art. 10(3)(b) Directive 2015/2436 even where goods are stocked in another Member State—if intended for offering/placing on the market in the protection state. “Possession” also includes indirect control (supervisory/managerial authority).
Trademark Law

General Court: “Eco” may still shape the overall impression despite being descriptive

The General Court clarifies that descriptive elements can still matter in the comparison of signs—especially when placed at the beginning and drawing attention due to their length/position.

Karin Simon
Lawyer
Certified IP Lawyer

Susanne Graeser
Lawyer
Certified IP Lawyer

Uhlandstr. 2
80336 Munich
Germany

Karin Simon
Rechtsanwältin
Fachanwältin für gewerblichen Rechtsschutz

Susanne Graeser
Rechtsanwältin
Fachanwältin für gewerblichen Rechtsschutz

Uhlandstr. 2
D-80336 München