Birkenstocks: more than just functional sandals, works of art?

This is the question that the German Federal Court of Justice (BGH) answered on February 20, 2025. The German Federal Court of Justice ruled that the famous Birkenstock sandals could not be considered “works of art” protected by copyright, as it had not been proven that their design was the result of a creative artistic process.

In other words, the Court found that Birkenstock sandals did not have sufficient individual character or aesthetic content to qualify as works of art. The mere scope for craftsmanship in the design or the substitution of one technical feature for another is not sufficient to create an original work.

The Birkenstock sandal is therefore merely a functional sandal.

German case law on the protection of utilitarian objects has evolved significantly over time. Initially very strict, requiring a remarkable degree of creativity as in the 1995 “Silberdistel” ruling, it was relaxed in 2013 with the “Geburtstagszug” decision. This latter decision appeared to finally bring German law into line with European law and marked a turning point by lowering the requirements for copyright protection.

Despite the strict requirements of the BGH, this development in case law has had the effect of encouraging manufacturers to increasingly invoke copyright protection, thus opening a debate on the appropriate level of protection.

But what will happen next? The BGH's latest decision on BIRKENSTOCK sandals remains very strict on the copyright protection of design objects and requires “aesthetic content.” Therefore, it is not enough to rely on copyright; additional measures such as registering designs and even trademarks are necessary to ensure the protection of objects. Fortunately, the BGH recently asked the CJEU (I ZR 96/22 USM Haller) about the level of requirement, and more specifically, the degree of originality of the work, which it believes should be higher for design objects than for traditional art. Its approach could therefore be called into question by the CJEU, which advocates broader protection for utilitarian objects.

This legal saga, which is causing quite a stir in the fashion world, is therefore far from over and could have significant repercussions for intellectual property protection in this sector!

Full article on Village de la Justice: https://www.village-justice.com/articles/les-birkenstock-allemagne-pas-protection-par-droit-auteur,53308.html

Photo credits: Gökhan Tahincioğlu