Are sandals works of applied art?
I confess: I too have owned Birkenstock shoes at various times in my life. And, yes, I have worn them, whether as sandals or slippers. Even today, there are still a few pairs lying around somewhere in the pile of shoes under the stairs. They are comfortable and practical. And if you look around, you’ll see that they’re not usually treated with kid gloves, but worn in all situations – and then somehow end up looking exactly like that. I’ve also noticed that over the years, Birkenstock has been trying to make its “health sandals” (as they are commonly known) more stylish through various collaborations with well-known designers and luxury brands, with special editions.
Well, it would never have occurred to me to consider these things works of art. However, that is exactly what Birkenstock wanted to have established by the highest court. Although, to be fair, it wasn’t the specially decorated limited editions that were the issue, but rather the basic design of the slippers.
Decision of the Federal Court of Justice
Today, the First Civil Senate of the Federal Court of Justice (Bundesgerichtshof, BGH), which is responsible for copyright law, among other things, ruled in three appeals on the copyright protection of Birkenstock sandals (BGH, judgment of February 20, 2025 – I ZR 16/24; I ZR 17/24; I ZR 18/24). Birkenstock – as the plaintiff – is of the opinion that its sandal models are copyright-protected works of applied art. The defendant’s offers and products infringe the copyright existing on its sandal models. It has brought several proceedings against companies that also offer sandals via the Internet or manufacture them as licensees, seeking injunctive relief, information, damages, and the recall and destruction of the sandals.
However, according to the Federal Court of Justice, these claims are unfounded because the plaintiff’s sandal models are not works of applied art protected by copyright under Section 2 (1) No. 4, (2) of the Copyright Act (Urhbergesetz, UrhG). The Federal Court of Justice confirmed the legal opinion of the Higher Regional Court (Oberlandesgericht, OLG), which had dismissed Birkenstock’s claims in the previous instance (unlike the Regional Court, which had previously agreed with Birkenstock): The OLG rightly assumed that copyright protection requires that there is creative freedom and that this has been used in an artistic manner, which is doubtful in this case. Free and creative (ergo artistic) creation is excluded in the present case insofar as technical requirements, rules, or other constraints determine the design. For copyright protection of a work of applied art—as for all other types of works—a minimum level of design must be required that allows individuality to be recognized.
This required level of design is not achieved, whereby the Higher Regional Court examined all the design features which, in Birkenstock’s opinion, justify copyright protection for its sandal models. However, the existing scope for design has not been exploited to such an extent that the sandal models are eligible for copyright protection. Purely craftsmanship using formal design elements is not eligible for copyright protection.
What remains?
Sole, footbed, straps – and there is the sandal – even in my view, the path to a work of art was quite a long one. I don’t know about you, but the ruling somehow corresponds more to my typical use case mentioned at the beginning, which is anything but glamorous, quite the opposite. I just want to have a shoe on my foot, not a work of art. Birkenstock must therefore secure its unique selling point in the market in the usual manner, through its undisputed high level of comfort, functionality, and – yes, definitely – casualness, not through exclusivity won through copyright.
Link to the press release:
https://www.bundesgerichtshof.de/SharedDocs/Pressemitteilungen/DE/2025/2025038.html
