Walking the line: Copyright and Design Protection

It's not often an intellectual property decision makes the front page of the BBC website, but no wonder when the decision relates to some of the most well-known sandals around, and ones that were worn by Margot Robbie in the hit 2023 Barbie movie. 

Birkenstocks have seen a big growth in popularity over the last decade. With this comes increased competition, with other companies producing their own similarly styled sandals, which to the untrained eye may be easily mistaken for the iconic Birkenstocks. 

Birkenstock released their “Madrid” sandal, a style which is still sold today, in 1963. As registered design protection generally lasts for 25 years, any registered design protection that Birkenstock may have had for some of their earliest designs will have long expired. 

However, recent CJEU decisions, which have been welcomed by designers, have suggested that items such as Birkenstocks should be able to benefit from copyright protection. In Cofemel v G-Star Raw the CJEU ruled that the only requirement for a design to qualify for copyright protection in the EU is originality. More recently, in 2024, in Kwantum v Vitra the CJEU confirmed that works of applied art from non-EU countries, including the United States, may now receive full copyright recognition within the EU and this decision also underscored the CJEU's continued push for harmonisation of copyright across EU member states.

So when Birkenstock tried to assert copyright protection against various parties, they must have thought that the law would fall on their side. Unfortunately for Birkenstock, Germany's highest civil court has deviated away from the CJEU's recent decisions and ruled that Birkenstock sandals are not works of art and therefore are not entitled to copyright protection. 

This decision by the German court feels uncannily similar to a decision in 2024 by the UK High Court, where it was determined that the WaterRower designed by John Duke was not entitled to copyright protection. The UK High Court ruled that while the WaterRower had aesthetic appeal, it was insufficiently “artistic” to qualify for copyright protection under UK law. The UK High Court found that the design was more commercially driven than artistically motivated.

Until this decision by the German Federal Court, it appeared that the UK's approach to copyright was much more restrictive than the EU's approach, making it difficult for designers of three-dimensional works (that are not sculptures) to rely on copyright protection in the UK. However, this German decision appears to have thrown the recent CJEU decisions out of the window, and with that thrown what may be protectable by copyright back into the darkness. 

So what does this mean for designers? Not all is lost, copyright may still be able to be relied on for three-dimensional works. I expect we will continue to see decisions by EU courts that go against this recent German Federal Court decision, but this is not guaranteed, and I expect the UK courts will continue to apply their restrictive approach to copyright protection. Therefore, instead of relying solely on copyright, designers should consider seeking protection for their designs using registered design protection, which can provide protection for a design for up to 25 years.