A sandal remains a sandal – also in the opinion of the German Federal Court of Justice
Summary of the latest decision of the German Federal Court of Justice (BGH) on the copyright protection of Birkenstock sandals
On February 20, 2025, the Federal Court of Justice ruled in a landmark decision that the world-famous Birkenstock sandals do not enjoy copyright protection. The central question was whether the design of the popular sandals is protected as a work of applied art within the meaning of Section 2 (1) no. 4 of the German Copyright Act (UrhG). The District Courts in Cologne and Hamburg had still assumed that the sandals were protected by copyright, but the Higher Regional Court in Cologne then denied this. These first-instance decisions had caused great uncertainty in the shoe-producing industry.
Basis of the decision
The plaintiff, which distributes various models of sandals as part of the Birkenstock Group, wanted to ensure that the sandals enjoy copyright protection as works of applied art – primarily to prevent cheaper copies. It argued that the special sole cut and choice of materials had resulted in an iconic and typical design, which, as a creative achievement, must be protected by copyright.
No sufficient creativity
However, the BGH does not share this view, as already became apparent in the oral hearings: the design of the Birkenstock sandals is not sufficient to be considered a work of applied art.
Copyright protection requires a certain level of creativity that reveals the individuality of the author. There must be a scope of creative design that has been used in an “artistic way”. Purely technical work using formal design elements cannot be protected. In simple words: what is required is a creative design that goes beyond the functionality. However, according to the BGH, this is precisely not the case here.
Functionality instead of art
The BGH emphasized that the existing scope for design had not been artistically exhausted in this case, but that the design of the Birkenstock sandals was primarily geared towards functionality. The sandals were not designed as works of art, but as practical “everyday objects”. Therefore, the simple and functional design of the sandals does not meet the requirements for copyright protection.
Impact of the decision
The decision of the BGH has far-reaching consequences for the question of the extent to which everyday objects can be protected by copyright. It shows that copyright protection in Germany is only granted for works that reach a sufficient creative level and do not merely have functional features.
Design protection instead of copyright?
However, Birkenstock announced that it would continue to take legal action against imitators. This is likely to be difficult after the BGH-decision. Although there is still design protection, the deadlines for Birkenstock sandals have already expired a long time ago: the term of protection for a registered design lasts up to 25 years maximum from the filing date, but the sandals were already designed in the 1970s. Therefore, copyright protection, which only expires 70 years after the death of the author, would have been more advantageous for Birkenstock…
