No Copyright Protection for Birkenstock Sandals: A Significant Decision from the German Federal Court of Justice

On 20 February 2025, the German Federal Supreme Court (BGH) delivered a landmark ruling in a case concerning the copyright protection of Birkenstock sandals. In its decision, the BGH firmly rejected the claim that Birkenstock’s sandal designs qualify for copyright as “applied art” under German copyright law. This judgment not only clarifies the scope of protection for industrial design works but also contrasts with prior rulings from regional courts in Hamburg and Cologne, highlighting the challenges of determining what constitutes “creative” or “artistic” design in functional products.

The Case: Birkenstock’s Fight for Copyright Protection

The case arose when Birkenstock, a prominent footwear brand, sought copyright protection for several of its sandal models, arguing that the designs were works of applied art. The company pursued legal action against various defendants selling or manufacturing sandals that allegedly infringed its copyright. Birkenstock’s argument was based on the claim that its models exhibited a level of artistic creativity deserving of copyright under Section 2 of the German Copyright Act (UrhG), which protects works of applied art if they meet certain requirements.

In earlier proceedings, both the Hamburg District Court and the Cologne Higher Regional Court had taken differing stances on the matter, with one court finding that the sandals could indeed be protected under copyright, and the other dismissing such a claim. However, the BGH ultimately sided with the Cologne Higher District Court, confirming that the Birkenstock sandals did not meet the required threshold for copyright protection.

The BGH’s Reasoning

The BGH’s decision hinges on the fundamental principle that copyright protection is reserved for creations with a certain degree of artistic and creative originality. The court emphasised that applied artworks, such as footwear designs, must reflect a “free and creative” use of design space. When a product’s design is primarily driven by technical or functional constraints, such as the necessity for comfort or durability, it cannot qualify for copyright protection. This has been described by the Cologne Higher District Court (6 U 89/23) as follows:

‘Art tends to be characterised by its freedom of purpose, design by its orientation towards use. Art begins with an idea. Design begins with a task.’

According to the BGH, the designs in question lacked the “design freedom” required to be considered works of applied art. The court pointed out that any creative contribution to the sandal designs was too minimal to meet the necessary level of artistic originality. Essentially, Birkenstock’s sandals were seen as primarily utilitarian products, with the decorative aspects insufficient to elevate them to the level of artistic creation worthy of copyright protection.

Diverging Opinion from the Hamburg District Court

Interestingly, the Hamburg District Court had previously taken a different view on the matter. In the 2022 case (310 O 40/22), the Hamburg District Court ruled that Birkenstock sandals were indeed eligible for copyright protection, recognizing the designs as works of applied art. The court took a more lenient approach, arguing that the aesthetic aspects of the sandals, despite their functional purpose, exhibited enough individuality to warrant copyright recognition.

Conclusion

In fact, the BGH’s decision probably does not change much from a practical perspective when seen in context with the BGH’s reference for a preliminary ruling to the European Court of Justice (ECJ) in the USM Haller case (BGH: ECJ referral on the concept of a work under copyright law — USM Haller GRUR 2024, 132, marginals # 18, 20). 

In this reference for a preliminary ruling to the ECJ, the BGH stated that it does not understand the “Cofemel” decision of the Court of Justice (ECJ GRUR 2019, 1185 para. 50–52 — Cofemel) to mean that copyright protection for works of applied art should be subject to stricter requirements than copyright protection for works of purpose free art.

Furthermore, the BGH takes the view that the examination of originality for all types of works must be carried out objectively and uniformly based on the specific work submitted. The subjective view of the author in the sense of creative intention or the awareness of free creative decisions, according to the BGH, should not be relevant (BGH: ECJ referral on the concept of a work under copyright law — USM Haller GRUR 2024, 132, marginal # 27).

The examination is carried out based on circumstances in which a possible creative intention of the creator is expressed in an objectively ascertainable manner. It cannot be inferred from the case law of the Court of Justice that, in addition to the finding that the author made an objectively unconstrained and thus free (creative) decision, it is necessary to establish that the author was aware that he was making a free (creative) decision in this sense.

The awareness of making a creative decision cannot be required either, because artistic achievements can also be made unconsciously or subconsciously (BGH: ECJ referral on the concept of a work under copyright law — USM Haller GRUR 2024, 132, marginal # 30). Insofar as the Court of Justice in the “Brompton Bicycle” decision referred to the factors and considerations that guided the creator in choosing the shape of the product (ECJ GRUR 2020, 736 para. 35 f — Brompton Bicycle), it does not follow from this, in the opinion of the BGH, that the assumption of originality presupposes the establishment of a “conscious” creative decision by the creator. Rather, it follows from the context of the grounds of the court’s decision in the “Brompton Bicycle” case that what matters is whether the result of the creative process constitutes an artistic achievement.

Thus, the national courts must determine whether the author of the product has expressed his creative ability in an independent manner by choosing its shape, by making free creative choices and by designing the product in such a way that it reflects his personality (ECJ GRUR 2020, 736 para. 34 — Brompton Bicycle) (BGH: ECJ referral on the concept of a work under copyright law — USM Haller GRUR 2024, 132, marginal # 31).

While Birkenstock’s iconic sandals are undoubtedly well-recognised globally for their design and comfort, the BGH made it clear that these features alone are not sufficient for protection as copyright. Birkenstock’s iconic sandals, in the view of the BGH, began with a task rather than with an idea. As such, they do not meet the threshold of required creativity. While this ruling contributes to the ongoing dialogue around the limits of intellectual property protection for designs that straddle the line between functionality and artistry, it will certainly not mark the end of this dialogue.

By Daniel Marschollek and Manuel Merling