Different Kinds of Cool That Still Just Don’t Register: Why Birkenstocks & Melted Rink Ice (AKA Water) Aren’t Copyrightable

James P. Flynn, Managing Director of the Firm and Member in the Litigation and Employment, Labor & Workforce Management practices, in the firm’s Newark office, authored an article in ILN IP Insider, titled “Different Kinds of Cool That Still Just Don’t Register: Why Birkenstocks & Melted Rink Ice (AKA Water) Aren’t Copyrightable.”

Following is an excerpt:

In 2015, the Wall Street Journal observed why Birkenstock sandals might be considered cool:

“It’s a taboo thing,” said New York-based stylist Brian Coats, who dresses Jimmy Fallon. “The fact that Birkenstocks are so uncool makes them cool.” The unstylish stereotype tied to Birkenstocks, said Mr. Coats, has made them ripe for the sort of re-contextualization that happens so often in fashion. [Ortved, CAN BIRKENSTOCKS EVER LOOK COOL ON A MAN?, WSJ, 5/14/2015]

An earlier article about the NHL saw no such ambiguity or reverse logic applicable to hockey because “Real Men Wear Skates,” and it seems unlikely that you’ll ever “convince me that hardwood is cooler than ice.” Why? Well because “NBA players dream of getting their next shoe contracts. Not hockey players. They dream of having their names etched on the Stanley Cup, the holy grail of pro sports trophies. Quick, what’s the name of the NBA’s championship trophy? See what I mean?” So hockey and everything associated with it is cool because “[h]ockey players have to combine all that speed and agility on top of managing to stay upright on a large ice cube” to produce “the undisputed best sport on the planet.” THW Archives, 10 Reasons Hockey Is the Greatest Sport on Earth, February 22, 2025. So, we have two different kinds of cool—the “so uncool that they are cool” sandals and a “so cool nobody comes close” sport.

There is a lot of money and opportunity in “cool” because “[c]ool products fill a genuine consumer need,” they “seduce consumer fantasy and imagination,” and they “appeal to the right group,” according to FORBES. Of course, they can exude cool, at least for a while, without having any real inherent value or use, like Pet Rocks or Silly Bandz, or they can be sneakers that do what sneakers do after incorporating the coolest inspirations of all time. And it is just these efforts to exude, and profit off, cool that led Birkenstock to want to copyright aspects of their sandals and a hockey memorabilia dealer to market Stanley Cup-shaped awards filled with melted rink ice from noteworthy games. While we can debate the level of “cool” involved with any of these products, courts in the US and EU have made clear that cool or useful ideas are not necessarily enough to support copyright registration.

Indeed, recent copyright decisions in the United States and Germany have shed light on the boundaries of copyright protection for product designs, particularly when functionality intersects with artistic expression. The United States Court of Appeals for the Third Circuit’s ruling in Grondin v. Fanatics in late 2024 and Germany’s Federal Court of Justice decision in Birkenstock v. Tchibo and Shoe.com more recently provide contending perspectives on what constitutes a copyrightable work.