Bundesgerichtshof judgment on copyright protection for Birkenstock sandals

The daily press has already reported on the Federal Court of Justice's "Birkenstock sandals" decision (judgement of February 20, 2025, case no. I ZR 16/24). For example, the F.A.Z. wrote on February 20, 2025: "'Birkenstock sandals are not works of art and therefore do not enjoy copyright protection', decided the highest German civil judges." Many other newspapers wrote similarly sweeping statements.

However, this bold statement is not correct. It is important to understand that the Federal Court of Justice did not carry out its own examination and assessment of whether the Birkenstock sandals "Madrid" and "Arizona" fulfil the requirements for copyright protection as works of applied art. Rather, the Federal Court of Justice as the highest instance court is limited to examining whether the Court of Appeal - in this case the Cologne Higher Regional Court - based its decision on the correct legal standards ("Obersätze") and complied with the procedural rules.

In these proceedings, Birkenstock took action against a competitor who had imitated various Birkenstock sandal models almost identically. Birkenstock invoked copyright law and argued that these models designed by Karl Birkenstock were protected as works of applied art. Birkenstock claimed that its exploitation rights to this copyright were infringed by these almost identical copies. The Regional Court of Cologne ruled in favour of Birkenstock. However, the Cologne Higher Regional Court upheld the defendant's appeal and denied the existence of copyright protection for Birkenstock's sandal models.

The Higher Regional Court wrote: "That the sandals [by Birkenstock] stand out artistically from the usual designs of health sandals already known at the time cannot be established on the basis of the plaintiff's factual submissions." In detail, the main question was the extent to which there is any scope for artistic creation in individual features or the extent to which the features are technically conditioned and therefore cannot be artistic.

Further points of dispute were (a) whether the subjective view of the creator of the work, Karl Birkenstock, during the creative process can also be relevant to the question of artistic achievement and (b) whether subsequent circumstances, such as the inclusion of the Birkenstock sandals in well-known design collections, are also relevant to the affirmation of copyright protection. The Higher Regional Court left these questions open because it did not consider Birkenstock's submission on Karl Birkenstock's subjective view and the inclusion of the sandals in design collections to be sufficient.

The BGH has now only reviewed these judgements of the Cologne Higher Regional Court for errors of law and, in the decision now published, has come to the conclusion that the Higher Regional Court cannot be accused of an error of law. In doing so, the BGH reiterates its previous case law, according to which the prerequisite for copyright protection is "a creation of an individual character whose aesthetic content has reached such a degree that, in the opinion of circles receptive to art and reasonably familiar with artistic perceptions, one can speak of an artistic achievement".

This formula is often met with reservations, as it is difficult to reconcile with the case law of the European Court of Justice, which has been trying - albeit hesitantly - to harmonise the protection threshold for copyright protection across the EU for several years. In the new Birkenstock decision, the BGH brushes aside these concerns as "historically conditioned differences in terminology".

However, the timing of this BGH decision is particularly noteworthy. Two preliminary ruling proceedings (Mio and USM Haller) are currently pending before the ECJ, which concern the question of which criteria should be applied when examining the eligibility for copyright protection, in particular for works of applied art (such as shoes or furniture). The judgements of the ECJ are expected in the coming months. It remains unclear why the Bundesgerichtshof did not wait with the Birkenstock decision until the ECJ had brought about the expected far-reaching clarification.

In any case, things remain tense, as it cannot be ruled out that some of the core statements of this German Birkenstock judgement will be rendered moot by the upcoming ECJ rulings.