Germany’s Federal Court of Justice ruled that Birkenstock sandals lack copyright protection despite their known design from the 1960s-70s. The court maintained that a creation requires demonstrable creativity beyond mere craftsmanship to qualify for copyright protection—a threshold Birkenstock failed to meet. The decision shows that exceptional circumstances are required to take action against product imitations without a registered right.
Birkenstock Sandals Are Not Art – Protection Against Product Imitationsin Germany
On February 20, 2025, the German Federal Court of Justice (BGH) held thatBirkenstock sandals do not enjoy copyright protection.
Background
The plaintiff, a member of the Birkenstock Group, is known for its various sandal models, notably “Madrid” and “Arizona,” designed by Karl Birkenstock in the 1960s and 70s. The plaintiff sought copyright protection for these sandal models, claiming exclusivity.
The defendant, on the other hand, markets sandals closely resembling those of the plaintiff’s Birkenstock models. This prompted the plaintiff to initiate legal proceedings against the defendant, primarily seeking injunctive relief.
While the plaintiff initially prevailed at the first-instance court, it lost in the appeal at the Higher Regional Court of Cologne. In the third instance, the Federal Court of Justice (BGH, Judgment of February 20, 2025 – I ZR 16/24 [[1]]) concurred with the Higher Regional Court, denying copyright protection for the Birkenstock sandals.
[1] https://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&sid=ea6d4ebe2b250fd4b21723c2267b2160&nr=140774&anz=1&pos=0
Decision
For copyright protection of a work of applied art within the meaning of Section 2, Paragraph 1, No. 4 of the German Copyright Act (Urheberrechtsgesetz), a level of creativity that is not too low is required – as it is for all other types of works. Purely craftsmanship using formal design elements is not eligible for copyright protection. Rather, for copyright protection, a level of creativity must be achieved that allows individuality to be discernible at all. This threshold was not met by the Birkenstock sandals.stock sandals.
Comment
The Federal Court of Justice’s decision shows that copyright protection is a rare recourse against product imitations. The ruling is commendable as it strengthens legal certainty; copyright protection for the sandals could not have been deduced from any register. Had the court decided the case differently, it would have likely led to further similar claims with uncertain outcomes from other companies against competitors. Furthermore, copyright protection would have significantly exceeded the duration of a design protection (which for designs from the 1960s and 70s would have expired long ago), lasting 70 years after the author’s death (Section 64 German Copyright Act). Through this decision, the Federal Court of Justice demonstrated that the requirements for copyright protection must not be set too low.
Conclusion
Companies seeking protection against product imitations can seldom rely on copyright protection. However, even without design rights (registered or unregistered) or a form mark, alternative legal recourses remain viable. In Germany, besides copyright law, another non-registrable option exists: action based on supplementary protection under unfair competition law (Section 4, No. 3 Act Against Unfair Competition (Gesetz gegen den unlauteren Wettbewerb)). This legal construct is highly contingent on specific cases, shaped by judicial decisions, and controversial, as it potentially provides protection when “more systematic ways of protection” fail. A prerequisite for the protection includes substantiating claims of unfairness against the opposing party. Among other things, due to the need to demonstrate this unfairness, pursuing a matter under supplementary protection under unfair competition law is often fraught with more uncertainties than those associated with registered rights.
In essence, companies in Germany may, under certain circumstances, take legal action against product imitations, even in the absence of a registered intellectual property right. Still, such a legal approach entails considerable obstacles, a reality underscored by the Birkenstock dispute.
