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German Federal Supreme Court denies copyright protection for Birkenstock sandals

When it comes to design protection, one of the exciting questions in recent years was under what conditions everyday objects can also be protected by copyright. In principle, utilitarian objects can be protected as works of applied art in accordance with Section 2 (1) no. 4 of the German Copyright Act (UrhG). Copyright protection is extremely attractive because it does not require registration and thus incurs no costs, and the term of protection is very long. Copyright protection does not expire until 70 years after the death of the author.

However, protection under copyright law requires the existence of a personal intellectual creation (Section 2 (2) UrhG), for which a certain level of creativity or originality is considered necessary. For decades, the Federal Supreme Court had set the bar for the protection of everyday objects very high, with the result that in the past they rarely enjoyed copyright protection. Traditionally, this was only granted to furniture or lamps that were considered genuine ‘Bauhaus classics’.

The matter was given a boost when the Federal Supreme Court, in its ‘birthday train decision’ in 2014, (the case concerned a small wooden train that could be decorated with candles at a child’s birthday party) for the first time broke with its decades-old case law and changed its course by stating that the bar for achieving copyright protection must be lowered. Since then, case law and legal literature have wrestled with the question of how low exactly the protection threshold should be set. In particular, manufacturers increasingly tried to claim copyright protection for their products, sometimes with more and sometimes with less success. The design of the Porsche 911, the Rubik’s Cube, fashion products, beer bottles or even urns with an airbrush design featuring a stag bellowing were among the objects in dispute. The decisions handed down by the European Court of Justice in the ‘Cofemel’ (C-683/17) and ‘Brompton’ (C-833/18) cases were of only limited help in this regard.

The outcome of the proceedings before the Federal Supreme Court, where the Federal Supreme Court has to deal with the question of whether the two very well-known Birkenstock models ‘Arizona’ and ‘Gizeh’, which Karl Birkenstock himself developed in the early 1960s, are also protected by copyright as works of applied art, was therefore eagerly awaited:

In case law, there were different views on this. While, for example, the Higher Regional Court of Hamburg (5 W 40/21) assumed copyright protection, the Higher Regional Court of Cologne (6 U 89/23) denied it.

As can be seen from a press release dated 20 February 2025, the Federal Supreme Court (judgments of 20 February 2025 – I ZR 16/24; I ZR 17/24; I ZR 18/24) has now ruled that the Birkenstock sandals cannot claim copyright protection. It could not be established that the existing freedom of design had been artistically exhausted to such an extent that the required level of originality was achieved. Free and creative work is excluded to the extent that technical requirements, rules or other constraints determine the design. For a work of applied art to be protected by copyright, as for all other types of work, a level of originality that is not too low must be required. A distinction must be made between artistic creation and purely artisanal creation, for which copyright protection cannot be claimed. Rather, for copyright protection to be claimed, a level of creativity must be reached that allows for individuality to be recognised, according to the Federal Court of Justice. This could not be established in relation to the Birkenstock sandals, as the Cologne Higher Regional Court had correctly elaborated.

The full grounds for the judgment are not yet available. However, it is already apparent that the Federal Court of Justice is quite clearly adhering to the view that copyright protection requires something ‘artistic’; the latter has been partially called into question when the view was taken that creative work as such is sufficient, without the need to recognise an artistic activity in it at the same time.

In fact, the matter may not yet have been definitively clarified, as two proceedings are currently pending before the European Court of Justice on the same issues, concerning the protectability of furniture, including that of the well-known manufacturer USM-Haller. It is possible that the outcome of these proceedings could prompt the Federal Court of Justice to adjust its case law again.

Manufacturers will be well advised to continue to protect everyday objects by registered design or community design. Relying on copyright protection alone could prove to be a fallacy.

Dr Jan D. Müller-Broich

mueller-broich@bock-legal.de