Image for illustrative purposes only
Birkenstock’s sandals have been around for decades and undergone something of a renaissance in recent years, featuring on catwalks and the Barbie movie. Founded in Germany in the 18th century, the company saw a surge in popularity in the 1970’s following their introduction into the USA.
The Birkenstock name and logos, like most established footwear brands, are protected by numerous trade mark registrations throughout the world. Trade mark registrations are powerful intellectual property rights as, if they remain in use and are continuously renewed, the rights can remain in force indefinitely.
Protecting Footwear Designs
The footwear itself can be protected by registered designs, another form of intellectual property. Registered designs are a useful form of protection for the appearance of products that are novel and have individual character. Registered designs protect against unauthorised selling of products with the same appearance or give the same overall impression as the protected design, and last up to 25 years from registration in Europe and the UK.
Owing to the company’s recent success, Birkenstock have suffered from copycat versions of their sandals being sold, particularly through online marketplaces. As the copiers are careful not to use the Birkenstock brand or anything similar to their registered trade marks, Birkenstock have had difficulty stopping copies of their older designs, as the relevant design rights have expired.
Birkenstock’s Legal Challenge and the Role of Copyright
Recently, Birkenstock failed in their attempt in the German courts to prevent several manufacturers from copying their iconic design by claiming that copyright in their sandal design was being infringed. Copyright is an automatic right which subsists in an original artistic, dramatic or musical work. Birkenstock’s claim therefore relied on being able to convince the German court that their sandals were artistic works and were eligible for copyright protection.
Ultimately, Birkenstock were unsuccessful, with the German court ruling that “pure craftsmanship using formal design elements” was not enough to qualify the design as an artistic work.
While the ruling prevented Birkenstock from relying on copyright to protect their designs, other forms of protection may still be available. For example, one further form of protection available to Birkenstock may be the registration of some of their recognisable designs as three-dimensional trade marks.
This case shows that companies and individuals may rely on a variety of intellectual property rights to protect their designs, and that designers should consider the whole range of protection available to them. If you would like cost effective and pragmatic advice on how to protect your designs, products, and ideas, please contact one of our attorneys.