On Thursday 20 February 2025, Germany's highest civil court ruled that Birkenstock sandals do not qualify as works of art and, consequently, the once unglamorous shoe is not eligible for copyright protection.
The Birkenstock sandals are known for their adjustable buckles, contoured cork soles and wide straps. They are so closely associated with the Birkenstock business that the name Birkenstock is often used to refer to the sandal itself. Birkenstocks are a popular choice for A-listers, Hollywood stars and travellers who are looking for a practical day-to-day shoe. They gained significant attention after a pink pair were worn by Margot Robbie in 2023's hit film 'Barbie'. Since then, they have become a worldwide must-have item with the German manufacturer selling roughly 25 million pairs a year.
But the surge in fashionable appeal is likely why the company sought to protect what they call the "iconic design" from knockoffs and dupes that are likely damaging their brand value and, potentially, causing a diversion in sales.
The Case
Birkenstock filed lawsuits against three businesses: Tchibo, Bestseller (Denmark), and Wortmann Group which operates Shoe.com. Each of these businesses sold sandals that were highly similar to the Birkenstock classic. The company claimed that the Birkenstocks were "copyright-protected works of applied art" that should not be copied.
In Germany, as in the rest of the EU and the UK, there is a distinction between (i) registered and unregistered designs which protect the shape and appearance of functional items – they are often referred to simply as 'designs'; and (ii) copyright which protects creative works including literary, artistic and musical works. Whilst designs provide a practical purpose, copyright works need to show a level of individual artistic creativity (in copyright terms, they need to be an 'intellectual creation'). There is also a difference in the length of protection each right gives. The maximum term of protection for a registered design is 25 years (assuming renewal every five years). By comparison, copyright protection lasts for 70 years after the creator's death. Because the Birkenstock classic sandals are no longer protected by registered designs, lawyers for the company argued the shoes should be classified as works of art and therefore protected as copyright works.
However, the German Federal Court of Justice (BGH) rejected copyright protection for the sandals. The court stated that to be granted such protection, the product had to display some "individuality" and that "pure craftsmanship using formal design elements" was not enough. The outcome of the decision appears to have given many in the media the impression that anyone may now imitate the sandals without repercussions. This is not necessarily the case. For example, it may still be open to Birkenstock to argue that there is unfair competition or passing off. Further, any use of the BIRKENSTOCK trade mark would give rise to a claim for trade mark infringement.
The Rise of Dupes
Since TikTok rose to global fame in 2018, the online retail space has seen an influx in 'dupes'. These are products that replicate luxury goods without infringing intellectual property by focusing on inspiration rather than copying. A good example is the "Wirkin" vs Birkin handbags. Walmart recently sold a series of handbags that looked so similar to the Hermès Birkin that they were dubbed the 'Wirkin' (a combination of the words 'Walmart' and 'Birkin'). Whilst prices for a leather Birkin brought straight from the store start from US$9,000 and can resell for more than US$30,000 depending on its style and condition, the Wirkin came in at the more budget-friendly price of between US$78 and US$102 making them attractive to consumers and popular on social media. Brands are retaliating by using AI tools, such as the website Huski, to identify knockoffs that might infringe on their products. However, identification is only the start of the process, the brands also need the legal tools to enable them to remove the dupes from the platform.
Registered Designs to the Rescue
Registered designs are a crucial means of ensuring that dupes can be quickly and easily removed from online sale. On registration, the various IP offices provide a registration certificate that tends to be respected by the various platforms. It is quick and cost effective to register a design in, at least, the UK and EU. However, applications for a registered design must be filed within one year of the date the design was first made available to the public.
Looking Ahead
Whilst Birkenstock was not able to successfully claim that its sandal was a copyright work, it does not follow that no fashion products are capable of copyright protection in Europe. For example, in late 2024, the Danish Maritime and Commercial Court held that the design of GANNI's Buckle Ballerina shoes were capable of copyright protection as an original work of applied art. Experts in that case emphasised GANNI's claim that the shoe was more than just a functional item, and the court decided that Steve Madden's Grand Ave shoe was an infringing copy of the GANNI copyright work.
While Birkenstock may have some other avenues for preventing dupes in the future, such as unfair competition, the argument that the shoe is a copyright work in Germany is now worn out.
Please get in touch if you would like to find out more about registered design protection or the other means of protecting products in the UK and EU.
Want to hear more from us? 
