Flip-Flopped Ruling

Posted on May 13, 2025 by

A few years ago, my daughter got a great deal on some imitation Birkenstock sandals. Unfortunately, they hurt her feet and fell apart pretty quickly. I guess Marvin Gaye and Tammi Terrell were right when they sang, “ain’t nothing like the real thing, baby.”

Johann Adam Birkenstock, a cobbler from Frankfurt, Germany, began making his famous sandals and other shoes in 1774. His goal was to make comfortable footwear that supported and contoured the foot. The company was run by the family for six generations until it sold a majority stake to L Catterton, a U.S. private equity firm backed by French billionaire Bernard Arnault and his luxury goods empire. L Catterton remained Birkenstock’s biggest shareholder after the company went public in 2023.

While already globally popular, the brand got an even bigger boost after Australian actress Margot Robbie wore a pair of pink Birkenstocks in the final scene of the 2023 hit movie “Barbie.” Because of the shoe’s notoriety, Birkenstock is fiercely protective of its brand. That’s why, when three competing shoe manufacturers made sandals allegedly too similar to Birkenstock’s, the company sued them.

The company claimed its famous wide-strapped, big-buckled sandals “are copyright-protected works of applied art” that may not be imitated. In Germany, works of art enjoy stronger and longer-lasting intellectual property protections than consumer products.

Under German law, copyright protection is valid for 70 years after the creator’s death. Design protection, however, hinges on the product’s lifespan and ends after 25 years. A product’s purpose determines whether it is deemed design or art. Design serves a practical function, while works of applied art require a discernible level of individual artistic creativity.

While shoemaker and Birkenstock descendant Karl Birkenstock, born in 1936, is still alive, many of his sandals no longer have design protection since they were created in the 1970s. Accordingly, Birkenstock’s lawyers asked the court to classify the shoes as art, extending their protection.

Konstantin Wegner, the company’s lawyer, said the sandals had an “iconic design” and announced further litigation after the decision was announced. “We want to add arguments in these pending proceedings,” she said.

Birkenstock asked for an injunction to stop the competitors from making imitation sandals and order them to recall and destroy those already on the market. The defendant companies were not identified in the court statement.

So, German courts had the difficult task of determining whether Birkenstock’s well-known sandals were just shoes or actually art. First, a regional court in Cologne agreed with the company and recognized the shoes as works of applied art. The court subsequently granted the orders Birkenstock requested.

However, on appeal, Cologne’s higher regional court overturned the lower court’s orders. The appellate court held that it was unable to establish any artistic achievement in the sandals.

Germany’s Federal Court of Justice, the country’s highest court for civil trials then heard the case. The top court sided with the appellate court and dismissed the case. In its ruling, it wrote that a product can’t be copyrighted if “technical requirements, rules or other constraints determine the design.” Presiding judge Thomas Koch said, “The claims are unfounded because they (the sandals) are not copyright-protected works of applied art.”

Koch continued, saying, “For the copyright protection of a work of applied art — as for all other types of work — the level of design must not be too low.” The court ultimately decided that, “for copyright protection, a level of design must be achieved that reveals individuality.”

Birkenstock considered filing a similar suit about the sandals in Canada, but withdrew the case after getting cold feet.



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Reg P. Wydeven

Elder Law and Estate Planning Attorney at McCarty Law LLP
Hoping to follow in his father’s footsteps from a young age, Reg’s practice primarily consists of advising individuals on estate planning, estate settlement and elder law matters. As Reg represents clients in matters like guardianship proceedings and long-term care admissions, he feels grateful to be able to offer families thorough legal help in their time of need.
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