Federal Court of Justice decision on the protectability of Birkenstock sandals
In a recent decision dated February 15, 2024, the Federal Court of Justice (BGH) has once again provided fundamental clarifications regarding copyright protection for utility objects. This judgment concerns a long-term legal dispute regarding the design of Birkenstock sandals, whose design the company sought to have recognized as a protectable “work of applied art.” Ultimately, the Federal Court denied copyright protection for these specific sandal models.
Background: Design protection and copyright law for utility objects
The central issue was the legal classification of whether the characteristic design of well-known Birkenstock sandals possesses sufficient creative content to be recognized as a work of applied art (§ 2 para. 1 no. 4 UrhG). While designs and registered designs offer rather formal levels of protection and regularly apply to commercial designs, copyright only applies if a design object demonstrates so-called ‘creative individuality.’ Copyright thus fundamentally protects design ideas that stand out from everyday design by virtue of a particular degree of individuality and artistic distinctiveness.
Legal standards on ‘level of creativity’
The Federal Court of Justice has consistently set high standards for the level of creativity required for utility objects. In particular, such objects must feature a design that significantly exceeds the ordinary and does not consist solely of purely function-driven design elements. To be recognized as a work of applied art, a certain artistic expressiveness must be present, resulting from an individual creative achievement and not merely from practical utility.
The court decision on BIRKENSTOCK sandals
Specifically, the proceedings (Case No.: I ZR 16/24, I ZR 17/24 and I ZR 18/24) concerned the copyright protection of various Birkenstock sandal models. The Federal Court agreed with the lower courts’ view that, while the design of these products has recognition value and is well-known, the requirements for copyright protection are not met. The shape of the sandals—such as wide straps, buckles, and ergonomic footbeds—is primarily functionally determined and lacks a particular ‘artistic character.’ While a trademark can indeed serve to identify or individualize products, for copyright protection there must be a far above-average creative achievement.
Comparison with other protection mechanisms
According to the Federal Court of Justice, Birkenstock still has recourse to protection under design and trademark law. The ruling emphasizes that not every aesthetically pleasing design can be protected by copyright. Unlike works of art, whose function exists solely or predominantly in their aesthetic content, stricter criteria apply to applied art. In weighing up sufficient protection for creative achievements against the competitive interest in the free use of everyday objects, the court always decides on a case-by-case basis.
Implications for companies and designers: legal certainty and planning
The decision once again highlights the limits of copyright protection for industrially manufactured products. Companies in the fields of fashion, accessories, and consumer goods should not rely solely on copyright, but should also pursue parallel strategic protection concepts through design and trademark registrations. The judgment not only provides guidance for the furniture and clothing industries, but also for developers of innovative utility objects in general, as it illustrates the hurdles for copyright protection of artistically designed everyday items.
Further development of the case law
As the court highlights, it always remains a case-by-case assessment as to whether particular design achievements attain a copyright-relevant level of creativity. Particularly in view of the continuous development of aesthetic trends and technical innovations, it remains open to what extent future designs might demonstrate a greater ‘artistic character.’
Conclusion and outlook
The current ruling provides important guidance for manufacturers, designers, and brand owners regarding the protectability of independent product designs under German copyright and design law. Companies bringing innovative products to market are well advised to review all relevant protection mechanisms and, in each case, to consider registration opportunities.
For anyone facing questions about the protection of product design, trademarks, or copyright issues—especially at the interface between national and international law—a careful and customized legal assessment is recommended. For further information on this topic area, the contacts at MTR Legal Rechtsanwalt are at your disposal.
