Birkenstock was denied copyright protection by the Federal Court of Justice in Germany (BGH) on 20 February 2025 after they have tried to sue in multiple cases against similar sandals of their competition, BGH, I ZR 16/24, I ZR 17/24, I ZR 18/24.
No Copyright Protection for Birkenstock Sandals
A requirement to receive copyright protection under German law is to have established a work. According to copyright law, works are “personal intellectual creations”. “Personal” means that they must have been created by a human being. The word “creation” means that there is a formation and not merely a discovery. This is to ensure that it is a novelty of its kind with a recognition value. The intellectual content must be of an intellectual or aesthetic nature. In addition, the work must have a creative level, i.e. the individuality must exceed a minimum quantitative level. Occasionally songs that are reissued fail because of this criterion. The law divides works – albeit not conclusively – into different categories. Thus, written works, speeches and computer programmes are considered to be linguistic works. However, works can also occur in music – such as composed songs. The law also lists pantomime works, including works of dance art, but also works of fine arts, including works of architecture and applied arts, as well as designs of such works.
The Birkenstock Group argued that its sandal models are works of applied arts and, therefore, protected by copyright law. For this reason, it has taken legal action in several cases for injunctive relief, information, damages, and the recall and destruction of competitors’ sandals. In short, the Birkenstock Group has been taking action against companies that offer similar sandals.
Initially, they were successful in the lower court, as the regional court upheld the claims in each case. However, the Higher Regional Court rejected it and already denied copyright protection, i.e. according to the Higher Regional Court, the sandal models do not constitute a work in the sense explained above. However, the Higher Regional Court allowed an appeal, which enabled the Birkenstock Group to take the dispute to the Federal Court of Justice (BGH). However, the appeals were unsuccessful, and the BGH agreed with the opinion of the OGL and denied the creation of a work in the present case. According to the BGH, purely handcrafted creations using formal design elements are not eligible for copyright protection. In other words, one could also say that the sandal as such is not individualised enough to be considered a “creative design” within the meaning of copyright law.
Anyone wishing to claim copyright must also explain the extent to which the requirements for this are met. The Birkenstock Group would, therefore, have had to explain exactly what the creative design of its sandals was. However, after examining the points raised by Birkenstock, the Higher Regional Court came to the conclusion that the existing scope for design had not been creatively utilised to such an extent that it would have been sufficient for copyright protection.
This is probably difficult for sandals anyway because, according to the OLG, the prerequisite for copyright protection under German law is that there is creative freedom which has been utilised in an artistic manner. However, such free and artistic creation is excluded if technical requirements, rules or other constraints determine the design. Above all, however, all of this must also have a high level of design, i.e. in the case of a sandal, a high degree of individuality. In any case, Birkenstock sandals are known for their very simple appearance, leading to very little room for a personal creation, which makes copyright protection difficult.
German Design Law
While copyright protection lasts for 70 years, design rights expire after 25 years. The more common ways to protect designs are actually via design patents or trademark rights. These must be registered with the relevant office, while copyright attaches to the work itself and, therefore, arises automatically when the work is created. One reason why the Birkenstock Group has tried to obtain copyright protection could possibly be that they are having problems registering their design with the European Union Intellectual Property Office (EUIPO). The office refused to register the ‘Arizona Big Buckle’ model because the design was too similar to a model from the British retailer Next, which had already filed an application for design protection before Birkenstock. In design protection, there would be leeway for various design elements such as the sole, the upper material or the colour scheme, which Birkenstock has not used sufficiently according to the EUIPO.
This leaves the Birkenstock Group with no defence to protect its sandals from imitators for the time being. It remains to be seen whether they will devise other strategies.
