With a much -noticed judgment, the Federal Court of Justice (BGH) decided on February 20, 2025: Birkenstock sandals are not works of applied art and therefore not protected by copyright. The decision is not only trend-setting for the shoe and fashion industry, but has an impact on the protection options of everyday and everyday objects as a whole. The result had already been expected after the hearing in January. The BGH rejected three revisions of the manufacturer from Linz am Rhein in the last instance and confirmed the view of the Higher Regional Court (OLG) Cologne, which had previously rejected copyright protection for the sandals.
Birkenstock had claimed three competitors on omission, information, compensation and recall and destruction of alleged imitations. “The claims are unfounded because it is not a copyrighted works of applied art,” said presiding judge Thomas Koch when the judgment in Karlsruhe said. The competitive products remain on the market. The BGH also paves the way for new competitors.
Expression of creative creation?
The Birkenstock models Arizona, Boston, Gizeh and Madrid were in dispute in the processes. Birkenstock argued that these models were copyrighted works of applied art.
Birkenstock sees the “Porsche under the sandals” in her models that every child in Germany knows. A model of the carmaker from Zuffenhausen was classified by the BGH in 2022 as the work of applied art. Birkenstock takes the view that Karl Birkenstock, as the inventor of the sandals, has creatively exploited creatively in the development of the well -known sandals. He had the impression of any but aesthetic foot in mind as a model and designed the individual form as an artist simplifies and point animals. The sandals are an expression of Karl Birkenstock’s creative creation and the result of purely artistic-design decisions- and not, as the defendants countered, the only manual-constructive implementation of technically-related elements. As personally, the sandals are intellectual creations
therefore protected by copyright.
The attractive of this reasoning from Birkenstock perspective: Copyright protection applies up to 70 years after the author’s death. In contrast, design protection is limited to 25 years after registration of the design.
Victory in the first instance – Schlappe before the OLG and BGH
The District Court (LG) Cologne had followed Birkenstock’s argumentation in the first instance and had affirmed the column protection protection of the sandals. In his approximately 90-page judgment-which reads as a “mixture of a culture anthropological and an orthopedic-medical dissertation”, as the Munich lawyer Stefan Ventroni wrote in a guest contribution-the LG stated why the Birkenstock models in his view are according to works of art. Karl Birkenstock made artistically shaped decisions in the development of the sandals, which could be assigned to the area of the creative imagination. These artistic designs went beyond the form specified by the function. In the second instance, the Cologne OLG, which denied copyright protection for the sandals and referred the complaints from Birkenstock: Karl Birkenstock’s artistic performance was not found. As with every commodity, the design freedom is limited with regard to the dispute -related sandals. The selection between different design alternatives alone does not justify creative performance. The sandals are not originals in the sense of their own intellectual creation of Karl Birkenstock.
Birkenstock models are not works of art
The BGH now confirmed the view of the OLG Cologne, according to which the Birkenstock sandals are not copyrighted works of applied art. The OLG was rightly assumed that copyright protection presupposes that there is a design freedom and was used in an artistic way. A free and creative work is excluded if technical requirements, rules or other constraints determine the design. In the Birkenstock judgment, the BGH now specifies its previous case law on the requirements for copyright protection for everyday objects. As for all other advertising cards, it is not too low for the copyright protection of a plant of applied art. Purely craftsmanship using formal design elements is not accessible to copyright protection. The BGH calls for a certain level of recognizable individuality. In contrast to a conventional work of art, a work of applied art has a purpose.
In order to enjoy copyright protection, the object in question must be a work, ie according to the wording of the law, a “personal mental creation”. The sandals would then have to have an individual character, the aesthetic content of which is recognized as “artistic” performance in somewhat art fans. To do this, there must be a design freedom that was used artistically-and not only technically-functional. A free and creative work is excluded if technical requirements, rules or other constraints determine the design. Due to the double character of a work of applied art as a work of art on the one hand and functional commodity on the other hand, it has to be looked at precisely. The BGH saw a scope for design in the case of Birkenstock as given.
In the next step, he checked whether Birkenstock used it sufficiently. To put it simply: Why does the shoe look the way it looks? Is the design technical or is it an expression of a creative performance? In the case of Birkenstock sandals, it cannot be determined that the existing scope for design has been artistically exploited to a protected dimensions or that only technical considerations shape the design. Birkenstock, however, bears the burden of explanation to what extent scope for free creative decisions were used beyond the function. The lack of conviction of the BGH goes into the Birkenstock cap.
