In February 2025, Germany’s Federal Court of Justice rejected the contention of Birkenstock that its sandals qualified as ‘works of art’ and were, as such protectable under the Copyright Law.[1] The Court had held that for copyright protection to be conferred, a certain degree of artistic merit, unburdened by the technical requirements and constraints on the artistic freedom, is required.

For copyright protection of a work of applied art, as for all other types of work, a level of design that is not too low is required. Interestingly, the Court acknowledges that the copyright protection and protection of designs or models have fundamentally different objects under the German Laws. However, the principal thrust of the case was in Birkenstock’s failure in fulfilling the requirement of ‘creative’/ ‘artistic’ freedom to warrant copyright protection.

The issue posed in the case at hand has echoes in Indian courts as well. In India, this question would confront the frequently debated overlap between a subject matter that is ‘copyrightable’ under the Copyrights Act, 1957 and ‘capable of being registered’ under the Designs Act, 2000. In particular, Section 15 of the Copyrights Act and Section 2(d) of the Designs Act address this overlap.

The former provision[2] limits copyright protection under the Copyrights Act for subject matters that fall within either of these two categories:

Firstly, the provision  states that copyright protection under the Act for is not conferred to subject matter ‘registered’ under the Designs Act.

The second category conceives copyright protection for subject matter which, even though capable of being registered under the Designs Act, has not been registered. However, the restriction that Section 15(2) imposes is one relating to quantity, as it provides that any copyright protection would cease if such article, to which the design has been applied, has been produced more than 50 times by an industrial process.

The second category often becomes the playing field for the contesting factions. A similar restriction finds mention in the definition of ‘Design’ under the Designs Act, which excludes any trade mark or ‘artistic works’ under the Copyright Act.[3]

Thus, should Birkenstock’s argument be posed before an Indian Forum, it must clear the threshold of Section 15 of the Copyright Act. In other words, to examine Birkenstock’s claim, i.e. whether its sandals are works of art, it would be required to examine whether the work was: (a) Capable of being registered under the Designs Act and (b) If yes, whether it has been reproduced more than 50 times.

This is where the overlap between Designs Law and Copyright Law comes into play. Before venturing into the issue any further, it is worth remembering that the Designs Act seeks to safeguard features ‘which in the finished article appeal to and are judged solely by the eye’[4], whereas the Copyrights Act seeks to protect rights in ‘Artistic Works’.

It is often held that the Court cannot be the arbiter of such creative merit, rather, the Court would examine ‘originality’ and ‘novelty’ in respect of copyrights, which would presumably be less subjective. In Dart Industries[5], the Court noted qua ‘originality’ in the context of a registered design:

22. To put it simply, the test laid down is that a person with ordinary prudence while seeing the designs/ documents in question is able to relate, in his mind’s eye, the same antecedents designs/ statements without the necessity of making further experiments i.e. the moment he sees the design, he is able to at once say ‘Oh! I have seen before’

The French artist Edgar Degas said “Art is not what you see, but what you make others see.”

There can be no quarrel in stating that what and how others see and appreciate ‘art’ cannot be set in strict parameters and varies significantly. Given this, the Courts are given the unenviable task of being ‘objective’ in assessing factors like creative contributions and originality of artwork/ designs in comparison with prior published works.

The Courts often look at ‘purpose’[6]/ “the purpose and intention”[7] as an indicator of whether the drawings were meant for the purpose of manufacture or for the purpose of artistic quality. Even though a Division Bench of the Delhi High Court in Microfibres[8] held that “However, the intention of producing the artistic work is not relevant”[9],  it also recognized that “The legislative intent is, thus, clear that the protection accorded to a work which is commercial in nature is lesser than and not to be equated with the protection granted to a work of pure art.”[10]

This discussion has, in multiple cases, emerged in the context of suits instituted for the infringement of copyright (under the Copyright Act) claimed in the drawings of such finished products and, often at the same time, to enforce rights conferred to registered design owners under the Designs Act.[11] The consistent stand of the Indian Courts on the issue can be captured as follows:

1. Once the drawings are made for creating the ultimate product design, the copyright in the said drawings cannot be claimed under the Copyright Act.[12]
2. The original drawings may still be regarded as ‘artistic works’.
3. However, copyright in such design ceases once any article to which the design has been applied has been reproduced more than 50 times by an industrial process by the owner of the copyright[13].
4. In Dart, the Court considered multiple scenarios to state that “if the drawings became capable of registration as a design, it would not result in copyright being forfeited. However, if the intended industrial use of the work was contemporaneous with its coming into existence, Section 15 of the Copyright Act would apply.”[14]
5. In Samsonite, the Court notes that the drawings are not of any use and therefore, they are designs capable of being registered.[15] Therefore, the whole purpose of the manufacture was to attract the eyes of customers. Therefore, it would follow from the argument on behalf of the plaintiffs that it is clearly a design coming within the definition of design, under the Designs Act, 1911 and coming within the meaning of Section 15 of the Copyright Act, 1957.[16]
6. The distinction between ‘design’ and ‘artistic work’, essentially lies in the ‘utility’. The ‘artistic work’ is the protected subject matter, while a ‘design’ is applied to an
7. In Pranda[17] a particular example would be helpful for the discussion:

 “If a painting, say Hussain’s painting of a horse, is simply reproduced in any medium… it will continue to enjoy full copyright protection in such reproduction under the Copyright Act. But if the painting is used as a motif to produce, say sarees, the industrial application, namely use as a motif in a saree would lose copyright protection, if not registered as a design under the Designs Act, 2000, after more than fifty applications. The difference between the former use and the latter use, is that what is reproduced is an artistic work itself in the former and what is produced in the latter case is an article, which is not by itself an artistic work.”[18]

Taking note of these factors, Birkenstock’s claim would, in all likelihood fall within the confines of Section 15 of the Indian Copyright Act. A close parallel to the Birkenstock argument could be seen in Kiran Shoes Manufacturers Vs. Registrar of Copyrights and Ors.[19] where Kiran Shoes challenged an order of the IP office (Copyright Board). The IP office had denied the Appellant’s claim that the ‘side trim device’, which was also registered as a trade mark, could be protected as an artistic work under the Copyright Act. The Court rejected the appeal and maintained the holding that Section 15 would be attracted in the given case.

Notwithstanding the creative/ artistic merit in Birkenstock products, with the application of Section 15, it is unlikely that the Birkenstock claim would meet a different response before the Indian Courts. The claims by Birkenstock would, under Indian Laws, find better protection under the Designs Act or even Trade Mark Laws. In fact, the overlap between Designs Law and Trade Mark Law in India is also a subject of an interesting discussion, one which may be beyond the present topic.

[1] The order can be accessed here. Press release by the Federal Court of Justice can be accessed here.

[2] Section 15 of the Copyright Act, 1957

[3] Section 2(d) of Designs Act, 2000

[4] Section 2(d) of Designs Act, 2000

[5] Dart Industries Inc. & Anr vs Techno Plast & Ors. 2007 SCC OnLine Del 892

[6] Para 41, Dart

[7] Samsonite Corporation & Anr. vs Vijay Sales & Ors 1998 SCC OnLine Del 324, Para 133; Also see M/s. Jagdamba Impex vs M/s. Tristar Products Private Ltd. 2014 SCC OnLine Del 2872

[8] Microfibres Inc. Vs Girdhar & Co. and Another 2009 SCC OnLine Del 1647

[9] Para 46(f), Microfibres

[10] Para 46(e), Microfibres

[11] Dart, Samsonite; Also see Pranda Jewelery Pvt. Ltd. vs Aarya 24KT 2015(5) MhLJ 122, OK Play India Limited vs  Mayank Aggarwal & Ors 2016 SCC OnLine Del 3880, Ritika Private Limited vs Biba Apparels Pvt. Ltd. 2016 SCC OnLine Del 1979

[12] Para 10, Dart

[13] Para 10, Dart

[14] Para 42, Dart

[15] Para 130, Samsonite

[16] Para 133, Samsonite

[17] Pranda Jewelery Pvt. Ltd. vs Aarya 24KT 2015(5) MhLJ 122

[18] Para 15, Pranda

[19] 2012:DHC:1314-DB