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 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 favour 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. It should be noted that the BGH’s role at this stage was not to independently reassess the sandals, but to review whether the lower court had applied the correct legal standards. It found no error.
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. When design choices are driven by function rather than artistic intent, copyright does not attach.
- Lack of Recognisable Authorship. The court found no evidence that the existing creative freedom had been exploited in an artistic way. Birkenstock failed to demonstrate that Karl Birkenstock’s design choices went beyond the craftsmanship of an orthopaedic shoemaker and reflected a personal artistic creative decision.
- The Brompton Bicycle case (Brompton Bicycle v. Get2Get, 2020) was cited by the BGH in its reasoning, but it does not stand for the proposition that functional designs can never qualify for copyright. That case confirmed that functional shapes can qualify for copyright if they reflect the author’s own free creative choices. The BGH cited it for the nuanced point that technical constraints do not automatically rule out copyright, but that creative freedom, where it exists, must be used in an artistic way. Birkenstock failed to demonstrate that.
Functional innovations do not always 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. Birkenstock did not hold registered design rights over its classic sandal designs as a whole.
- Unfair Competition Law – Under Germany’s Unfair Competition Act, claims could be brought against lookalikes causing consumer confusion, though this route also has limits where copied designs have become common in the market.
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 recognisable even without copyright.
Conclusion
Birkenstock’s sandals are among the most recognisable 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 shows why registered designs and unfair competition laws are the more appropriate routes for protecting industrial design. That said, neither is straightforward. Unfair competition claims in particular require evidence, and for a brand as widely recognised as Birkenstock, the strength of its market presence and consumer association could support such a claim. But the evidence still needs to be there. A famous name alone is not enough.
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