German Federal Court of Justice: No copyright protection for Birkenstock sandals

The case

The German Federal Court of Justice has recently handed down a judgment on the copyrightability of Birkenstock sandals (judgment dated 20 February 2025, case no. I ZR 16/24). The case concerned these specific models which Birkenstock argued were copied by a competitor:

The case stands or falls on the question of whether the sandals are protected by copyright. It was beyond doubt that the contested sandals were imitations. The District Court had assumed copyright protection and, consequently, granted the injunction. The Appeal Court had denied the copyright protection and lifted the injunction.

The decision of the Federal Court of Justice

The Federal Court of Justice confirmed the Appeal Court’s findings that these sandals did not qualify for copyright protection. The Court of Appeal had based its decision on the requirement that there must be a degree of freedom of design that has been used in an artistic way for copyright protection to apply. A free and creative work is excluded if technical requirements, rules or other constraints determine the design. Copyright protection is not available for purely technical creations that use formal design elements. Rather, a level of design height must be achieved for copyright protection that allows individuality to be recognised. The party claiming copyright protection bears the burden of demonstrating that these conditions are met.

The Federal Court of Justice considers these criteria to be correct. The Court of Appeal had also not made any mistakes in the application of these criteria and correctly dismissed the claim. From a procedural point of view the Federal Court of Justice highlighted that the claimant must explain ‘precisely and clearly’ the extent to which the object of use is artistically designed beyond its functionally predetermined design. The FCJ found that Birkenstock failed in this regard.

Analysis and outlook

The situation remains exciting. The CJEU currently has two referrals from Sweden (case no. C-580/23 – Mio) and Germany (case no. C-795/23 – USM Haller) regarding the determination of the copyrightability of works of applied art. Among other things, the question is whether the examination of originality should be based on the subjective view of the creator during the creative process or whether an objective standard should be applied that also takes into account later circumstances, such as the presentation of the work in art exhibitions or the awarding of prizes. In addition, the question of practical relevance is to be clarified as to what extent the set of shapes before and after the creation of the work is to be taken into account when examining originality.

It is interesting to note that these details were not relevant to the Federal Court of Justice in this case. The Birkenstock case apparently seemed more straight-forward.