For in-depth knowledge and analysis, register for our upcoming webinar on this matter: https://zoom.us/webinar/register/1017... And once the full judgements are released, we will publish an IP report so stay tuned on our social media!
Heads up, copyright lovers: Finally, the Federal Court of Justice in Germany rendered its decisions on the question: Are these shoes copyright-protected? These decisions are only binding for the parties concerned but they also have significant impact on the whole health sandal industry and beyond.
The Court of Justice confirmed the decisions of the Appellate Court of Cologne, which had denied copyright protection for the sandal models Madrid, Arizona, Boston and Gizeh. It therefore lifted the contradicting decisions of the Regional Court of Cologne.
Here's what the Court of Justice found: In essence, the Higher Regional Court rightly assumed that copyright protection presupposes that creative freedom exists and has been used in an artistic manner. Free and creative work is excluded if technical requirements, rules, or other constraints determine the design. For the copyright protection of a work of applied arts – as for all other types of work – the level of originality must not be too low. Purely technical creation using formal design elements is not eligible for copyright protection. Rather, for copyright protection, a level of originality must be achieved that reveals individuality. Notably, anyone claiming copyright protection bears the burden of proof for meeting these requirements.
The Court also confirmed that the Higher Regional Court dealt with all design features which, in the opinion of the Plaintiff, justify the copyright protection of their sandal models. In a legally correct assessment of the facts, it came to the conclusion that it cannot be established that the existing scope for design has been artistically exhausted to such an extent that the plaintiff's sandal models are protected by copyright.
While the fights against Birkenstock, at least regarding these sandal models, are over now for the specific defendants, many other cases are still pending with lower instances. In view of the present decisions, the defendants in the other pending proceedings may be optimistic about positive outcomes for them. However, right after the present decisions of the Federal Court of Justice had been rendered, Birkenstock announced to continue their copyright battles and bring up new arguments there, so the cases will remain exciting.
Are these decisions bad news for the creative industry? I wouldn't say so; if anything, they once again confirm that works of applied arts are as such eligible for copyright protection, as long as they show a certain level of originality.
Once we get hold of the full judgements, we will publish an IP report, and mark your calendars: on March 18, I will have the pleasure to host a webinar on copyright protection together with my colleague Henning Hartwig – stay tuned on our social media!
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