Birkenstock has been in business for more than 250 years. The models in suit were all designed decades ago. Over the years, Birkenstock sandals has gained a status close to a heritage asset in Germany. Once dubbed as hippy sandals (“Ökolatschen”), their image has transitioned to iconic fashion items. Yet, the Bundesgerichtshof (German Federal Court of Justice, BGH) ruled they are not art.

Requirements for copyright protection

In order to be protected by copyright, a work, including such of applied art, needs to be an original and an expression of author’s own intellectual creation. The latter requires an objectively identifiable subject matter. If, on the other hand, the creation was determined by technical considerations, rules or other constraints that left no room for the exercise of creative freedom, the threshold of originality is not met. In principle, sandals can be protected by copyright. A two-step test, asking whether there was sufficient creative freedom and whether that freedom was artistically exploited by the author, has become common practice to determine copyrightability in Germany.

Assessment of the BGH

The BGH held that while the sandals had a characteristic overall impression, it could not be established that they were originals in the sense of their author’s own intellectual creation. In particular, exercising choices regarding various design elements (for example, form of footbed, buckle, fastening system) as such is not sufficient to bestow copyright protection.

The court found that the designer took reference in prior models so that the sandals were within the realm of the craftsmanship of an orthopaedic shoemaker. They did not artistically deviate from health sandals known at the time of creation and from the models it was not apparent that Karl Birkenstock had exploited the existing scope for design in a creative way that reflected his personality. On the contrary, the court assumed that the designs were primarily oriented towards the result of a product that was particularly “healthy” for the foot, but also marketable.

The BGH also found that the questions currently pending before the Court of Justice of the EU (CJEU) in the USM Haller and Mio cases are not relevant for the decision. These questions inter alia concern the relevance of (1) the subsequent assessment of the work as a design classic by experts and (2) the subjective view of the creator.

Outlook

The decisions set a high bar for copyright protection in Germany. However, they are in line with prior decisions of the BGH and the CJEU. In the past, Birkenstock had successfully claimed copyright protection before lower instance courts, that found the design choices of the designer were sufficient to meet the threshold of originality. With the decisions of the BGH, it will be more difficult to substantiate copyright protection for fashion items in Germany.

Birkenstock does not own trade mark or design rights regarding the design of its classic sandals as a whole. It is also questionable if Birkenstock could successfully claim passing off according to unfair competition laws for some of its sandals. In one decision, a German court found that unfair competition law cannot be asserted because similar models to the Arizona sandal had become common on the German market. The decision is based on the assumption that Birkenstock failed to ensure competitive protection of its products at an early stage.

Prior instances

• Regional Court of Cologne decision of 11 May 2023.
• Higher Regional Court of Cologne decision of 26 January 2024.

In short

In principle, works of applied art including sandals can be protected by copyright in Germany.

Copyrightability requires an original and the author’s own intellectual creation manifested in an identifiable object.

Combining previously known design elements is not sufficient to meet the threshold of originality.

Asserting passing off rights in due time is crucial to prevent designs with competitive character becoming common.

Case details at a glance

Jurisdiction: Germany
Decision level: Bundesgerichtshof (German Federal Court of Justice, BGH)
Parties: Birkenstock v Tchibo et al
Date: 20 February 2025
Citations: I ZR 16/24; I ZR 17/24; I ZR 18/24
Press release (with links to judgments): dycip.com/bgh-press-release-20feb2025