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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.

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Karin Simon
Lawyer
Certified IP Lawyer

Susanne Graeser
Lawyer
Certified IP Lawyer

Uhlandstr. 2
80336 Munich
Germany

Phone +49 89 90 42 27 51-0
Fax +49 89 90 42 27 51-9

Karin Simon
Rechtsanwältin

Fachanwältin für
gewerblichen Rechtsschutz

Susanne Graeser
Rechtsanwältin

Fachanwältin für
gewerblichen Rechtsschutz

Uhlandstr. 2
D-80336 München

Tel. +49 89 90 42 27 51-0
Fax +49 89 90 42 27 51-9