A design may be instantly recognisable, commercially successful, and deeply associated with a brand, but that does not mean it qualifies for copyright protection. The German Federal Court of Justice has ruled that Birkenstock’s Madrid and Arizona sandal designs do not qualify for copyright protection. The decision confirms that these widely recognised footwear models lack the artistic originality required under Germany’s Copyright Act (Urheberrechtsgesetz – UrhG). Applying a strict legal interpretation, the court emphasised that copyright under German and EU law demands a clear demonstration of creative authorship beyond mere functionality.

Birkenstock’s Sandals

The Madrid sandal was introduced in 1963, followed by the Arizona in 1973, marketed as orthopedic footwear focused on foot health. Unlike decorative shoes, these were engineered for ergonomic support, featuring Birkenstock’s contoured footbed and minimalist strap design. The key innovation was the use of cork-latex for arch support, which became a signature of the brand.

Birkenstock’s Case and the Court’s Decision

Birkenstock argued for copyright under Sections 2(1)(4) and 2(2) of the German Copyright Act (UrhG), which covers works of applied art. It claimed the specific cut, material choice, and shape of its sandals reflected creative authorship, along with the sole’s distinctive bone pattern, introduced in 1981. The company sought an injunction, damages, and destruction of infringing products from Leder Sandale, a competitor selling similar designs.

The Cologne Regional Court initially ruled in favor of Birkenstock, acknowledging a degree of originality. However, the Higher Regional Court of Cologne overturned the decision, finding the designs lacked the artistic authorship required for copyright. The BGH upheld this ruling, dismissing the claim entirely.

Why Copyright Did Not Apply

The BGH ruled that for copyright protection, a design must be an artistic achievement reflecting the personal intellectual creation of the designer.

• Functionality Over Artistic Expression – The court determined that orthopedic and ergonomic needs dictated the design, not creative expression. Under UrhG Section 2(2), this excludes copyright protection.
• Lack of Recognizable Authorship – Section 7 of the UrhG requires independent artistic judgment from a creator. The court found no evidence of such authorship in Birkenstock’s design process. Birkenstock failed to demonstrate personal intellectual authorship by Karl Birkenstock, which is necessary under UrhG.
• EU Copyright Law Consistency – The ruling aligns with Brompton Bicycle v. Get2Get (2020), reaffirming that functional designs cannot qualify unless creative elements exist separately from technical requirements. The materials and shapes served a practical purpose rather than conveying artistic intent.

From a legal standpoint, functional innovations do not equate to artistic originality. A design may be distinctive, but if dictated by technical necessity, copyright will not apply.

Other Legal Protections That Could Have Been Used

Since copyright was not an option, what alternatives did Birkenstock have?

• Design Protection – A registered design grants temporary exclusivity over ornamental aspects but requires formal registration.
• Trademark – If a product’s shape has acquired distinctiveness in the market, it may be eligible for trademark protection. Shape trademarks, such as Christian Louboutin’s red sole, could apply if Birkenstock proved acquired distinctiveness.
• Unfair Competition Law – Under Germany’s Unfair Competition Act, claims could be brought against lookalikes causing consumer confusion.

What This Means for Fashion Brands

This ruling is a lesson for fashion brands attempting to push copyright protection onto functional designs. Industrial design and copyright serve different purposes, and copyright will not extend beyond design law’s limits. Brands must:

• Use multiple forms of IP protection rather than over-relying on copyright alone.
• Understand the limits of functional design protection. A famous design does not automatically qualify for copyright.
• Leverage branding to create a distinct identity, ensuring products remain recognizable even without copyright.

Conclusion

Birkenstock’s sandals are among the most recognizable in the world, but their fame does not make them copyrightable. Functionality cannot be disguised as artistic authorship, and the BGH’s decision illustrates that distinction.

This case is not an anomaly but part of a broader reality for fashion and footwear brands. Copyright is not a tool for indefinite monopolies over product designs. If protection is sought, it must fit within the legal framework available. A well-designed product is not necessarily a copyrightable work.

The case also shows why registered designs, trademarks, and unfair competition laws remain the strongest tools for protecting industrial design. This ruling is a reminder that industrial design protection has limits, and brands must work within this framework to safeguard their creations and interests.

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