On February 20, 2025, the Bundesgerichtshof (BGH), the German Federal Court of Justice, issued a ruling confirming the appeal decision, which does not recognize copyright protection for the well-known Birkenstock sandal models.
The Case
The plaintiff, a company belonging to the Birkenstock group, challenged the online sale and production by the defendant of sandal models almost identical to those sold by the company. Specifically, the plaintiff argued that its models could be defined as “works of applied art” under § 2 Abs. 1 Nr. 4, Abs. 2 UrhG (German Copyright Act) and therefore protected by copyright as creative, original designs conceived by Karl Birkenstock, the founder of the eponymous company.
The plaintiff sought an injunction against the production and sale of the contested models, as well as damages and the destruction of the products in question.
Requirements for Copyright Protection
In the first instance, the Cologne District Court upheld the plaintiff’s claims, recognizing that the models for which copyright protection was claimed had characteristics worthy of copyright protection. However, on appeal, the Court rejected the plaintiff’s requests previously granted in the first instance, ruling that the sandal models could not be considered “works of applied art” under German and European copyright law. The Court of Appeal determined that it was not necessary to ascertain whether Karl Birkenstock had actually conceived the model, nor whether the right had been correctly transferred to the plaintiff company, given the absence of the requirements for copyright protection.
In particular, the Court referred to European case law, according to which, to be protected by copyright, a work must meet two fundamental conditions:
- Originality, i.e., it must constitute the author’s own creation, reflecting their personal and free creative choices.
- Objective identifiability, i.e., the work, as such, must be clearly and objectively identifiable as the author’s artistic expression and not merely as the result of technical-functional requirements.
The Court of Appeal therefore ruled that Birkenstock sandals, while showing the presence of characteristics with a certain degree of identifiability, are primarily the result of technical-functional choices, aimed at ensuring the health and comfort of the foot rather than expressing an autonomous artistic and original value.
The Decision of the German Federal Court of Justice
The decision of the Court of Appeal was subsequently reviewed by the Bundesgerichtshof. The appellant, who lost in the second instance, argued that the law had been incorrectly applied and, in particular, that the originality requirement of the sandal models in question had been incorrectly assessed.
The German Federal Court of Justice, however, confirmed the decision of the second-instance Court, considering that the latter had correctly applied the current legislation in recognizing specific individualizing design characteristics in the sandals.
Also in line with the Appeal’s decision, the BGH ruled that the characteristics of the models in question do not exceed the necessary threshold of creativity, thus excluding the possibility of protection under copyright law.
Final Considerations
The BGH ruling highlights how thin the line is between technical innovation and true artistic expression. While recognizing the presence of individualizing elements, the German Judge, also based on European case law, reiterated that reaching the threshold of originality, understood as free and creative expression, is essential to be able to enjoy copyright protection.
This decision reinforces the criterion that mere functional choices cannot be considered artistic expressions and represents a point of reference for future disputes in the sector and for the definition of the boundaries of copyright.
Elena Bandinelli