BGH: Birkenstock sandals are not art

On February 20, 2025, the Federal Court of Justice (BGH) ruled in three appeal proceedings that the well-known Birkenstock sandals - including the "Arizona", "Madrid", "Gizeh" and "Boston" models - are not to be classified as copyright-protected works of applied art. This decision has far-reaching consequences - not only for the shoe manufacturer Birkenstock, but for all companies that invest in innovative product designs. Below you will find out which aspects of this decision are particularly relevant, why expired design protection alone is not sufficient and which alternative protection strategies you should consider.

1 Introduction: The protection of product designs in practice

For many companies, the protection of product designs is a key element in protecting innovations from imitators and safeguarding their investments. This ruling by the BGH shows impressively that classic copyright protection - which could offer protection for more than 70 years if the strict criteria are met - does not apply here because the iconic Birkenstock sandals do not have the necessary creative freedom. This raises the question in particular: How can you as a company effectively protect your designs even after the original design protection has expired?

We highlight the key aspects below:

Expired design protection versus long-term copyright protection
The problem of the "small coin" in copyright law
The precedent of the "birthday train" and its significance
Alternative protection routes: Supplementary performance protection under competition law

Read on for practical recommendations to help you effectively protect your creative services in the future.

2. expired design protection vs. long-term copyright protection

2.1 Design protection - a temporary instrument

Design law protects innovative designs of consumer goods, but is limited in time from the outset. In Germany, the maximum term of protection is generally 25 years. After this period has expired, the design falls into the public domain, meaning that competitors are generally free to use and imitate it.

Practical relevance:
For companies that invest heavily in research and design, this means that design protection alone is not enough to secure long-term market positions. In the case of Birkenstock sandals, the original design protection has already expired - opening the way for imitators and increasing the pressure for continuous innovation.

2.2 The potential of copyright protection - permanent protection for Birkenstock sandals?

In contrast to design law, copyright law offers much longer protection, which - if the requirements are met - lasts up to 70 years after the death of the author. If the Birkenstock sandals had been protected by copyright, this would have represented an enormous competitive advantage.

Essential requirement:
For a design to be protected by copyright, it must be considered a "personal intellectual creation" and have a sufficient level of design. However, the BGH found that technical requirements and industry-specific standards restrict the creative freedom of the sandals too much. As a result, the sandals could not be regarded as works of applied art within the meaning of copyright law.

3. the "small coin" in copyright law

3.1 What is meant by the "small coin"?

As Small coin In German copyright law, the term "small coin" refers to works that are at the lowest limit of a work that is just barely protected by copyright. The term "small coin" in copyright law refers to works that have a creative component, but this is only present to a minimal extent.

Obviously, the BGH believes that Birkenstock sandals have not even reached the "small coin".

3.2 Challenges in the evaluation

Courts are often faced with the difficult task of assessing whether a design goes beyond mere functionality and contains a sufficient creative contribution of its own. In the case of minor creative contributions - the so-called "small coin" - this distinction is particularly challenging.

Recommendation for clients:
In order to achieve the highest possible level of protection, you should ensure that you incorporate not only functional, but also innovative and creative elements right from the design process. Detailed documentation of the development process can make all the difference in the event of a dispute.

4. the "birthday train" precedent - a game changer in case law

4.1 Background to the birthday parade

In the legal debate, the term "birthday train" stands for a groundbreaking BGH ruling in which the protectability of designs as works of applied art was intensively debated for the first time. This ruling made it clear that not every creative achievement, even if it appears innovative, can automatically claim full copyright protection.

4.2 Parallels to the current case

In the current BGH ruling on the Birkenstock sandals, the standards formulated in the birthday parade are taken up again. The judges emphasized that when assessing copyright protection, the creative freedom is decisive - i.e. the extent to which the design goes beyond technical necessities and industry-specific standards.

Importance for your company:
The Geburtstagszug ruling and its application in the Birkenstock case show that innovative designs are not automatically considered worthy of copyright protection. It is therefore crucial to ensure sufficient individuality in the run-up to the design process.

4.3 Consequences for future legal disputes

The precedent ruling provides clear indications of how courts will decide on the protection of designs in future. For clients, this means that a purely functional design often does not offer the desired long-lasting protection - unless the creative freedom can be clearly emphasized.

5. alternative means of protection: supplementary protection under competition law

5.1 Why alternative protection strategies are important

As traditional copyright protection does not always apply - especially if the requirements of "personal intellectual creation" are not fully met - there is only one loophole for many companies: supplementary protection under competition law. This protection mechanism is aimed specifically at companies that invest in the development and design of innovative products.

5.2 How performance protection under competition law works

Performance protection under competition law protects a company's economic investment in a particular design. Specifically, this means that competitors may not unfairly profit from a company's own creative achievements. This protection applies if the design does not meet all the criteria of copyright law, but significant investments have nevertheless been made in research and development.

Supplement to other protection mechanisms:
This protection serves as a useful supplement to trademark and design law measures and often closes gaps that these protective rights do not cover.

5.3 Strategic importance for your company

In an increasingly globalized and competitive market environment, it is essential for companies to combine various protection strategies. Supplementary protection under competition law can help you to secure your innovative strength and market position in the long term, even if traditional copyright law fails.

Practical recommendation:
Review your protection strategies regularly and, if necessary, seek specialized legal advice to make the best use of all possible protection instruments.

6. detailed analysis: What made the design of the Birkenstock sandals so special?

6.1 Overview of the iconic models

The BGH ruling relates to four central models that are particularly well known in the market:

Arizona:
A sandal with two wide straps that also attracted particular attention in the Hollywood film "Barbie" in 2023.
Madrid:
A model characterized by a single, distinctive strap.
Giza:
The sandal in a thong design that embodies a modern look.
Boston:
A clog model that impresses with its robust yet elegant appearance.

These models are exemplary of a design that is considered "iconic" in the public perception - a legacy based on Karl Birkenstock's first designs in the Brutalist style.

6.2 Legal differentiation: design versus applied art

A central point of contention in the proceedings was the distinction between purely functional design and a work of applied art.

Design:
Is primarily determined by functionality, choice of materials and technical specifications.
Applied art:
Assumes that the design has an individual artistic expression that goes beyond pure functionality.

The BGH found that although the sandal models have a high recognition value, their design is too strongly characterized by technical and normative specifications to obtain protection as a "personal intellectual creation".

7. impact of the ruling on your company and the industry

7.1 Concrete consequences for Birkenstock and comparable companies

The BGH ruling means that companies like Birkenstock will not be able to rely on long-lasting copyright protection in the future.

Market opening for competitors:
After the design protection has expired, comparable models are legally easier to imitate.
Increased pressure to innovate:
In order to stand out from the competition, new and unique designs must be continuously developed.
Need for alternative protection strategies:
In addition to improving creative output, the use of supplementary legal instruments is essential.

7.2 Impact on the entire design and creative industry

The ruling has far-reaching implications:

Clarification of the protection limits:
It is clear that functional designs without sufficient creative freedom hardly fulfill the requirements of copyright law.
Realignment of protection strategies:
Manufacturers and designers must increasingly rely on a combination of design, trademark and competition law protection measures.

Practical tip:
Use the ruling as an opportunity to revise your internal processes for design development and documentation. This can help you to convincingly demonstrate your creative contribution in the event of a dispute.

8. strategic recommendations for clients

As a specialized law firm, we recommend the following measures to secure your innovative strength and market position in the long term:

Early legal advice:
Have your new designs legally examined as early as the development phase. This is the only way to determine at an early stage whether all the criteria for copyright protection are met - or whether alternative protection strategies are necessary.
Use combined protection strategies:
Do not rely solely on design or copyright protection. A sensible combination of:
- Trademark law
- Design law
- Supplementary performance protection under competition law
  Closes potential protection gaps and strengthens your market position.
Documentation of the creative process:
Keep a complete record of the development process of your designs. In the event of a dispute, this can serve as evidence of your individual creative achievement and prove that your innovations are more than just functional designs.
Investment in innovation:
Rely on continuous innovation and creative freedom in product development. This is the only way you can meet the high demands of copyright law in the long term and set yourself apart from the competition.
Regular review of protection strategies:
Case law is constantly evolving - as the ruling on the "birthday train" shows. You should therefore regularly adapt and optimize your protection concepts to ensure that you are always up to date.
Consideration of international protection standards:
Especially if you are active on international markets, the harmonization of protection mechanisms can help you to protect your designs globally.

9 Outlook: Challenges and opportunities in the field of design protection

This ruling by the Federal Court of Justice represents an important milestone in the discussion on the protection of product designs. It makes it clear that the limits of traditional copyright protection are reached where technical requirements and standards dominate. At the same time, it opens up the possibility of using alternative legal instruments - such as supplementary protection under competition law - to safeguard economic interests.

10. summary and conclusion

The decision of the Federal Court of Justice on February 20, 2025 is a wake-up call for all companies that invest in innovative product designs. In essence, the ruling shows that:

Expired design protection:
The original design protection alone - which is usually valid for a maximum of 25 years - is not sufficient to guarantee long-lasting performance protection.
Limitations of copyright protection:
Although copyright law offers protection for more than 70 years if the strict criteria are met, the Birkenstock sandals lacked the required "personal intellectual creation".
The problem of the "small coin":
The hurdle for obtaining copyright protection is not too high. However, minor creative contributions that are present but do not go beyond purely functional design elements are not sufficient to claim full copyright protection.
Birthday train precedent:
Previous rulings, such as the so-called birthday procession, have shown that the standard for artistic design worthy of protection is high - a standard that was not met in the current case.
Alternative protection strategies:
Supplementary protection under competition law offers economic compensation if traditional copyright protection does not apply. In addition, combined protection mechanisms from trademark, design and competition law measures can close a gap.

Conclusion for clients:
It is essential to take a holistic view of your protection strategies and not rely exclusively on a single legal basis. Early consultation, careful documentation of the creative process and the combination of different protection mechanisms are crucial to safeguard your innovations in the long term.

11. practical implications for your business practice

As a client, you benefit from the following specific measures:

Individual legal advice:
Our law firm supports you in providing optimum legal protection for your products and designs right from the start. We check whether all the requirements for long-term protection are met and advise you on alternative protection instruments.
Adapt protection strategies:
Take advantage of our know-how to evaluate and adapt your existing protection strategies - whether by focusing more strongly on the protection of services under competition law or through the targeted use of measures under trademark law.
Promoting creativity and documentation:
We recommend comprehensively documenting the creative process. A transparent and detailed description of the design development can be decisive in the event of a dispute and help you to substantiate your claim for protection.

12. contact and further advice

If you have any questions about the BGH ruling and its impact on your company or would like individual advice, please do not hesitate to contact us. Our experts in trademark, design and competition law will work with you to develop tailor-made strategies to protect your creative investments in the best possible way.

Please contact us:

Phone: 02131/4051650
E-Mail: kanzlei@marken.legal

Take advantage of our expertise to ensure optimum legal protection and strengthen your market position in the long term.

13. final thoughts

The ruling of the Federal Court of Justice clearly shows that in a dynamic and highly competitive market environment, it is crucial to act flexibly and with foresight. Whether through the optimization of the creative process, the use of various protection mechanisms or through targeted legal advice - the protection of your innovations must not be left to chance.

We at brands media meyen support you in protecting your rights and safeguarding your investments in innovative designs in the long term. Rely on our expertise to keep your finger on the pulse of the times and remain legally protected in the future.

With this comprehensive overview, we would like to provide you as a client with the best possible information and support you as a strong partner in trademark, design and competition law. Contact us - together we will develop the optimal strategy to protect your creative ideas from imitators and secure your market position.