Matt Holohan Article on German Court’s Birkenstock Copyright Decision Published in Intellectual Property & Technology Law Journal
Matt Holohan, a partner in the Quarles & Brady Intellectual Property Practice Group, wrote an article in the Intellectual Property & Technology Law Journal about a German court’s decision on a copyright infringement claim by sandal maker Birkenstock.
Birkenstock Group argued that three rival sandal manufacturers infringed the Birkenstocck sandal design copyright, but the German Bundesgerichtshof (BGH), or Federal Court of Justice, rejected the claim, ruling copyright protection does not apply if the design is driven by technical requirements.
In his article, Holohan delved into the significance of this decision given the ongoing debate in the apparel design community between creative and technical components as it relates to copyright protection. An excerpt:
The Birkenstock decision illustrates a tension within the design community when it comes to intellectual property protection, particularly in the context of apparel.
It is well-settled that ornamental aspects of apparel are subject to design patent protection, and design patents have become an important tool in protecting original fashion designs. But design patents are issued for terms that might prove to be too short for designs that go on to achieve great success (e.g., in the United States, a maximum of 15 years). In some situations, this leaves designers searching for alternative methods to protect their intellectual property.
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Apparel design involves significant creativity, and as designers continue to infuse seemingly functional designs with flairs of artistic expression, effective intellectual property protection becomes more important. Understanding the boundaries between function and ornamentality is a critical aspect of crafting effective design protection strategies.