The Federal Court of Justice (BGH) has ruled: Birkenstock’s famous sandals do not enjoy copyright protection. Other suppliers are allowed to sell similar models.

What was the dispute?

The Birkenstock company wanted to enforce in court that its sandals are protected as “artistic works”. This would have meant that imitators were not allowed to copy their models.

How did the courts decide?

• The regional court initially ruled in favour of Birkenstock.
• The Higher Regional Court took a different view and ruled that the sandals did not have a copyrighted design.
• The Federal Court of Justice has now confirmed this decision.

Why no copyright?

The court says that copyright protection requires that

• there is creative freedom
• has been utilised in an artistic manner.

Free and creative work is excluded if technical requirements, rules or other constraints determine the design. Purely technical creation using formal design elements is not eligible for copyright protection. Rather, in order to be protected by copyright, a level of design must be achieved that recognises individuality. Anyone claiming copyright protection bears the burden of proof that these requirements have been met.

Possible justification for the decision:

Since Birkenstock sandals are primarily known for their comfort and functionality (ergonomic footbed, stable straps, specific sole shape), it is reasonable to assume that their design is not primarily the result of free, artistic creation, but of practical and functional requirements. This is precisely what the BGH is likely to say in essence, although we will have to wait for the reasons for the judgement.

With sandals, however, function takes centre stage.

• Their design results from practical and technical specifications – not from artistic freedom.
• Therefore, the creative achievement is not sufficient to obtain copyright protection.

What does the judgement mean?

Birkenstock cannot invoke copyright law to stop imitators. Other manufacturers are allowed to offer similar sandals – as long as no trade mark rights are infringed.