In its ruling of 20 February 2025, the Federal Court of Justice (BGH) decided that the sandals of the manufacturer Birkenstock do not constitute works of applied art protected by copyright (§2 (1) number 4, (2) of the German Copyright and Related Rights Act (UrhG)) (ZR 16/24; I ZR 17/24; I ZR 18/24).
Birkenstock's aim in the legal dispute was to take action against offers and products from competitors. Birkenstock's claims for injunctive relief (§97 (1), §§2, 15, 17 UrhG) and the annex claims for information, damages, destruction and recall were dismissed as unfounded.
Birkenstock and other luxury brands
The German company Birkenstock has enjoyed an international success story in recent years as part of luxury brands.
Birkenstock advertises on its website that the sandals imitate the „natural footprint of a foot in the sand“ and adapt so that „feet can endure many hours in shoes with as little strain as possible“. However, Birkenstock sandals have long since ceased to stand for pure functionality and are now considered a special product among luxury brands.
The creative directors of one of the best-known luxury brands Jil Sander, Lucie and Mike Meier, who have accompanied the shoes „to some remarkable places, from camping in the Canadian wilderness to sitting by the fire in the Swiss Alps“, have been won over by the „quality and integrity of Birkenstock“. This has even led to a collaboration (Birkenstock X Jil Sander).
Further collaborations with luxury brands such as Königliche-Porzellan Manufaktur (KPM), one of the most renowned porcelain manufacturers in the world (KPM X Birkenstock), with well-known model and public figure Heidi Klum (Birkenstock by Heidi Klum), with the luxury brands Manolo Blahnik (Manolo Blahnik for Birkenstock) and Rick Owens (Birkenstock X Rick Owens I, III, III) have helped Birkenstock to change public perception and change its image in the luxury brand sector.
Designer Blahnik adorned the sandals with the famous Blahnik glitter soles for the collaboration between luxury brands Manolo Blahnik and Birkenstock. He triumphed in a web clip: „You can even get married in them, they're that beautiful.“ „Basically, Birkenstocks are like jeans: functional and sexy. Maybe Birkenstocks are even the sexiest shoes ever“ said designer Rick Owens in an interview with GQ Germany.
In 2001, the US investor L Catterton secured a majority stake (65%) in Birkenstock. The investor is under the control of ultra-high-net-worth individual Bernard Arnault. Birkenstock thus joins Bulgari, Givenchy, Kenzo, Dior, Céline, Loewe, Fendi, Mark Jacobs, Rimowa and especially Moët Hennessy and Louis Vuitton in the portfolio of luxury brands of the French group LVMH.
On the Birkenstock homepage, Birkenstock also emphasised to consumers that the sandals „stand out pleasantly from the flood of cheap products that largely dominate our consumer world today“. For consumers of luxury brands, the international brand identity is associated with the awareness that the sandals offer „outstanding comfort, high functionality and exceptional quality“ and that the workmanship takes place under the „demanding conditions typical of our brand.“
Even Rick Owens appreciates the sandals precisely because of this functionality. „Form follows functionality,“ he states in an interview on the Birkenstock X Rick Owens I collaboration. „There is something modest about the fact that they are not flirtatious. They are rather austere, which adds to their appeal.“
Birkenstock has thus undoubtedly developed into a major luxury brand.
Course of the process
The fruits of this success had to be protected by copyright and guarded against copycats. Jochen Gutzy, Chief Communications Officer at Birkenstock, agrees: „We want to ensure that copycats can no longer earn money on the back of our brand.“
In 2023, Birkenstock attempted to defend itself before the Cologne Regional Court (LG) against the sale of sandals on the internet by the three competitors. Birkenstock argued that the sandals were entitled to copyright protection. In designing the sandals in question, the creator Karl Birkenstock had utilised the existing design possibilities in such a way that an „iconic, brutalist, typical design“ had been created.
The Regional Court initially upheld the claims.
However, the Cologne Higher Regional Court (OLG) dismissed the claims and denied copyright protection. In the appeal proceedings, the BGH has now confirmed the decision of the OLG.
What was the specific issue?
The OLG argued in detail that Birkenstock sandals were not a work of applied art pursuant to §2 (1) number 4, (2) UrhG and that the copyright protection sought was therefore excluded.
Copyright is an intellectual property right and concerns the protection of intellectual property. Unlike design rights, for example, it arises as an industrial property right without being entered in a register (see §27 (1) of the German Act on the Legal Protection of Design; DesignG).
In particular, Birkenstock invoked copyright law, as this grants the creator, among other things, exclusive rights of use to his work, which continue to exist for 70 years after his lifetime (§ 64 (1) UrhG).
The creator of the Birkenstock sandals, Karl Birkenstock, is still alive. This would guarantee long-term protection (in comparison: the design right only exists for up to 25 years; §27 (2) DesignG).
Of course, this only applies if the requirements are met.
Work of applied art
The prerequisite for copyright protection is categorisation as a work in accordance with §2 (2) UrhG. It must be a personal intellectual creation with an individual character.
The latter criterion presupposes that there is room for manoeuvre and that the creative process has culminated in the work. The degree of individual character, which is often decisive, is referred to as the „creative level".
To date, case law has recognised copyright protection even for a low level of design (so-called small coin) (Geburtstagszug decision; case no. I ZR 143/12). The aim of this characteristic is to establish a distinction from everyday and purely technical creations.
The law provides a non-exhaustive list of types of work to define a work. In §2 (1) number 4 UrhG, works of applied art are protected by copyright. For these, the purpose of use is in the foreground.
For this reason, the existence of the necessary level of design must always be examined more closely and explained. In particular, it must be demonstrated to what extent the object is artistically designed beyond its form given by its function and the scope of design is artistically exhausted.
Assessment of the OLG
With regard to these requirements, the OLG found that sandals from luxury brands are generally eligible for copyright protection pursuant to §2 (1) number 4 UrhG.
It is true that the design of sandals from luxury brands is restricted by their intended use. They require at least a sole and a strap to hold them in place so that they can be used by the user to move around.
However, there is no concrete technically mandatory design of this purpose.
The OLG further investigated whether this limited scope for design was utilised by the creator Karl Birkenstock in an artistic manner. This was to be rejected, as the necessary level of design to justify copyright protection had not been achieved.
At the heart of the reasoning was the consideration that the Birkenstock creator Karl Birkenstock remained in the field of technical and artisanal shoemaking and that the sandals were therefore not eligible for protection. The OLG affirmed in this context. „It is not the technical variant, but the artistic (design) achievement that is eligible for protection.“
The burden of proof for the existence of the requirement of artistic achievement lies with the party seeking to claim copyright protection. Birkenstock was unable to fulfil this burden with its explanations of the design features of its sandal models.
In realising the task of designing sandals that consist of a sole and an upper, the creator Karl Birkenstock purely adhered to given shapes. The design of the sandals is based on shapes that are already familiar to other products on the market, namely the focus on a shoe that is particularly healthy for the foot.
This is also supported by the Birkenstock homepage, on which the Birkenstock sandals are advertised as health sandals that are orientated towards natural walking. This would argue against an artistic decision.
In particular with regard to the material of the midsole, the OLG found that there was room for manoeuvre in the selection. However, this was not characterised by an „objectively recognisable exercise of artistic freedom.“
The choice of material for the sole, which consists of a cot-shot-latex mixture, was purely functional in nature compared to other materials and not artistic. The focus is purely on the health-promoting function.
The OLG did not agree with Birkenstock's view that the decision in favour of a non-veneered sole cut was of an artistic and creative nature and reflected the personality of the creator Karl Birkenstock. According to the court, Birkenstock justified its decision not to cover the cork layer with the haptic and flexible nature of the material, which represented a functional and marketing-orientated design decision.
In particular, no artistic design decision could therefore be recognised with regard to this design feature.
Confirmation by the BGH
In its judgement, the BGH has now agreed with the OLG's assessment and found that Birkenstock's sandal models do not constitute works of applied art pursuant to §2 (1) number 4 UrhG. They continue to be denied copyright protection.
The BGH agreed with the opinion of the OLG in particular on the point that copyright protection requires both a certain degree of creative freedom and its utilisation in an artistic manner. This artistic utilisation of the scope is excluded if constraints such as technical requirements or rules significantly influence the design.
Furthermore, the BGH emphasised once again that the requirements for the level of design must not be too low. There must be a certain degree of individuality.
On the merits, the BGH confirmed that the OLG's substantive examination of the design features of Birkenstock's sandal models was free of legal error.
The result, according to which the existing leeway was not artistically exhausted, was thus confirmed as free of legal error.
Résumé
This confirmatory judgement by the BGH means that Birkenstock can no longer rely on copyright law to protect its sandals. However, Birkenstock has announced that it will use competition, design and trade mark law to defend itself against competitors in future.
dtb-lawyer and expert in copyright and trade mark law and luxury brands Leon van Lee comments: „Copyright protection is a valuable tool for companies that sell luxury goods and are known for their special brand identity to prevent imitations. This is particularly true in view of the long term of protection.“ He specifies: "Therefore, the copyright requirements must be carefully examined. Copyright protection is only possible if the design is so individual and creative that it can be recognised as a genuine artistic creation. Furthermore, the examination of trademark protection rights is always a useful addition.“
Status 27.02.2025