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Arizona, Madrid or Gizeh – almost everyone knows the popular sandal models from Birkenstock.
The history of sandals began in 1774 with the shoemaker Johannes Birkenstock and his great-grandson Konrad Birkenstock, who opened an orthopaedic shoemaking business in 1896. He developed various lasts and was able to register his insoles as “footbeds” with the Imperial Patent Office in 1925. These were later mass-produced by Konrad’s grandson Karl Birkenstock with the help of a fixed, anatomically shaped insole. Over time, more and more models were added, which were later also sold internationally. The company grew steadily thanks to the increasing popularity of the shoes and is now a listed company.
Due to increasing popularity, more and more competitors are producing similar models. Birkenstock is therefore demanding that they refrain from using the sandals and claim damages because the sandals are protected by copyright.
But are the slippers actually protected by copyright?
Why copyright?
Copyright protection differs from other legal protection in important respects, particularly with regard to its creation, duration and scope. While design protection protects the external appearance of a product, such as shape or color, the design must first be registered with the Office and is limited to a maximum of 25 years. Copyright, on the other hand, arises automatically with the creation of a work and protects personal intellectual creations such as works of art, texts or – under certain conditions – product designs. A major advantage: copyright is valid for 70 years after the death of the author and therefore offers significantly longer-term protection. In addition, no application or registration is necessary.
It was precisely for this reason that Birkenstock sought copyright protection for the shape of its sandals. By recognizing it as a copyrighted work, it should remain legally protected.
Omission and damages under the Copyright Act
The author of a work can demand injunctive relief and damages in accordance with Section 97 (1) of the German Copyright Act (UrhG) if his copyright is infringed by a third party.
Karl Birkenstock designed the “Madrid” (1963) and “Arizona” (1973) models, among others, and could therefore be considered the author of these. For this to be the case, the sandals and their unique sole would have to be a work within the meaning of Section 2 UrhG. In principle, copyright law protects free, creative achievements, but not those that are exclusively purposeful or technical.
The judgment
According to Section 2 (1) No. 4 UrhG, works of fine art fall under this definition of work if they are personal intellectual creations according to paragraph 2.
A two-step check is therefore required:
- Artistic design and
- Creative way.
According to the BGH, artistic design presupposes a creation of individual character whose aesthetic content has reached such a degree that, in the opinion of circles receptive to art and familiar with art appreciation, it can be considered an artistic achievement.
The author must sufficiently demonstrate that the existing creative freedom has been used artistically. This is not the case if the features are either technically mandatory or technically conditioned. However, the design of the Birkenstock sandal was largely determined by functional aspects.
Birkenstock insisted that Karl Birkenstock had demonstrated his artistic design through the choice of sole shape, material, buckles and strap guidance and the various combinations. An expert opinion from the proceedings before the Higher Regional Court of Cologne confirmed that the sandals had “a modern and honest aesthetic due to their simplicity”. The case initially went before the Cologne Regional Court, which upheld Birkenstock’s claim. However, in the higher instance, before the Higher Regional Court of Cologne, the action was dismissed. It was initially determined that, despite their functional limitations – they require at least a sole and a strap – the sandals are in principle eligible for copyright protection and that there is scope for design. However, the OLG denied that this scope had been used beyond the purely technical. Birkenstock had merely adhered to functional specifications in the design and had not exploited the artistic freedom. The material used also only served functional and health aspects, but not creative design. This argument of the OLG is also supported by the fact that the shoe is declared as a “health sandal” on the Birkenstock homepage. Birkenstock’s argument that the uncovered sole was an artistic decision was rejected by the OLG: here, too, the decision was more functional and marketing-driven than creative.
The BGH subsequently confirmed the judgment of the OLG. The sandals were not works protected by copyright, as although there was scope for design, this had not been sufficiently used artistically. In order for copyright protection to apply, more than mere craftsmanship is required; individuality and artistic expression must be recognizable. This was not the case with the Birkenstock models.
The BGH thus found that Birkenstock sandals do not enjoy copyright protection as works of applied art pursuant to Section 2 (1) No. 4 UrhG.
Outlook
What does this ruling mean for Birkenstock? First of all, there is no copyright protection for the sandal design. Birkenstock can therefore not invoke copyright law to prohibit imitations of its sandal models. As long as no other property rights are infringed (e.g. trademark law or design law), competitors can legally offer visually similar sandals. Birkenstock must now rely on trademark law, design protection or competition law to take action against imitations. However, these forms of protection are more limited and often limited in time.
Sources:
BGH Judgment v. 20.02.2025 – I ZR 16/24; I ZR 17/24; I ZR 18/24
https://www.lto.de/recht/hintergruende/h/bgh-izr1624-birkenstock-sandale-kunst-kunstbegriff-barbie
Image
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