The Birkenstock brand has seen a profound change of image in just a few years: what was once considered an orthopedic slipper is now an iconic sandal. But this does not mean that Birkenstock sandals can be regarded as an artistic product and therefore enjoy copyright protection. This was found by the Federal Court of Justice (Bundesgerichtshof) in its landmark ruling of February 20, 2025.
What was the legal dispute about?
The Birkenstock Group had taken legal action against various companies (cases I ZR 16/24, I ZR 17/24, and I ZR 18/24) that offered similar shoe models. The claimant argued that Birkenstock sandals constitute a personal intellectual creation and are therefore subject to copyright protection. The company demanded injunctive relief, information, damages, and the recall and destruction of the offending products. Cologne Regional Court (Landgericht) initially upheld the claim, but Cologne Higher Regional Court (Oberlandesgericht) reversed the decision and did not grant copyright protection. Birkenstock filed an appeal.
Decision of the Federal Court of Justice
The Federal Court of Justice upheld the decision of Cologne Higher Regional Court and denied copyright protection for Birkenstock sandals. The reason it gave was that works of applied art are only worthy of protection if they involve a sufficient level of creativity and were created in a free, artistic design process. The Court found:
- The design must display a certain degree of individuality.
- A purely functional or technical design is not sufficient.
- It is for the party calling for copyright protection to demonstrate the level of creativity required.
According to the judges in Karlsruhe, although Birkenstock sandals are aesthetically pleasing, their design is largely determined by functional requirements and established design principles. There is therefore an absence of the free, artistic design necessary for copyright protection under Section 2 (1) No. 4 Copyright Act (UrhG). Cologne Higher Regional Court had already emphasized in a headnote (January 26, 2024 – 6 U 89/23, GRUR-RS 2024, 1143) that the scope for creativity existing for an orthopedic sandal must be exploited artistically beyond the form prescribed by the function.
Differentiation from design law
The ruling by the Federal Court of Justice also underlines the difference between copyright and design law: while copyright law requires the existence of a personal intellectual creation, design law protects the aesthetic appearance of a product irrespective of an artistic achievement.
Conclusion and outlook
The Federal Court of Justice’s decision sends a clear signal for product design in the applied arts: manufacturers from the fashion or design sector cannot simply invoke copyright law if their products are primarily characterized by functional or technical needs. They will therefore have to increasingly rely on other protective mechanisms such as design or trademark law to prevent imitations. The ruling means more legal certainty for competitors who manufacture similar products, but also for designers looking to break new ground. The decision is also likely to spark debate as to whether the hurdles for the copyright protection of design objects are too high or whether they ensure fair competition.
One thing is for certain, the judgement by the Federal Court of Justice was a landmark decision that further sharpens the boundaries of copyright protection for everyday products.
Picture credits: Heorshe_AdobeStock.com
