No copyright on Birkenstock sandals: German highest court rejects protection

Birkenstock’s iconic sandals may be recognizable worldwide, but on Feb. 20, 2025, the German Federal Court of Justice (BGH) ruled that the sandals do not enjoy copyright protection, at least in Germany. In this article we set out the European review framework, explain the BGH’s reasoning and look at Birkenstock’s pending proceedings in the Netherlands.

When is something copyright protected?

Within the European Union, the copyright concept of work is harmonized. This means that all member states, including the Netherlands and Germany, use the same legal assessment framework to determine whether a work deserves copyright protection. According to this framework, a protected work exists if:

• it is sufficiently precise and objectively identifiable; AND
• it is original, in the sense that it constitutes the author’s own intellectual creation.

However, the application of this criterion has not been harmonized (equal validity throughout the EU). Judges in member states assess independently, based on the party’s argument and the facts of the case, whether these conditions are met. This can lead to different outcomes within the EU in similar cases anyway.

Why no copyright in Germany?

The BGH applied the harmonized European concept of work when assessing the Birkenstock sandals. The BGH ruled that the sandals were not original intellectual creations of their own and therefore not eligible for copyright protection.

According to established case law of the BGH, protection requires that the work have an individual character and reach an aesthetic level that is recognized as an artistic achievement by circles familiar with art. For this, the designer must have had creative freedom and have used it in an artistic manner.

That space was lacking here: according to the BGH, the design of the sandals is largely determined by functional and technical requirements, such as the orthopedic sole and the position of the straps. When the design stems primarily from functional or technical considerations, room for creative freedom is lacking. It must then be considered whether the design, regardless of its use function, demonstrates creative freedom that was actually used artistically.

Although there was some room for choice – for example, in material or workmanship – Birkenstock did not exercise it in an artistic manner, according to the BGH. The design of the Birkenstock sandals remained within the limits of technical craftsmanship and lacked a clearly personal, artistic signature. Even subsequent inclusion in museums or winning design awards does not change this, according to the BGH. Such appreciation is not legal proof of copyright originality.

Proceedings in the Netherlands

Birkenstock is also litigating in the Netherlands against A.S. Watson, Ferro Footwear and Scapino Retail, among others. While these cases concern different types of sandals than in Germany, the BGH ruling does not mean that Dutch courts will automatically reach the same verdict.

As mentioned, the European concept of work is harmonized, but the application differs from one member state to another. In addition, the copyright threshold in the Netherlands is generally lower than in Germany. Dutch courts place less value on the artistic interpretation of the end result, and look mainly at whether the creator had room for his own creative choices, and whether those choices are not trivial or banal.

Conclusion

The German ruling makes it clear that a recognizable or commercially successful design – especially when it comes to utilitarian objects – does not automatically enjoy copyright protection. At the same time, Dutch practice shows that within the European Union, the application of the concept of work can differ from country to country. For internationally operating designers and companies, it is therefore important not to simply assume that copyright protection is the same in every country, especially for products in which form and function are strongly interconnected. Should you have a product that is “simple” in design terms, as a plaintiff it is better to litigate about it in the Netherlands if you want to invoke copyright. If the understanding is that it is more likely that the alleged counterfeiter of your product will be denied his copyright claim, then litigation in e.g. Germany would be more likely to succeed than in the Netherlands.

Questions?

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