Shoes and Copyright: The Birkenstock Case and Its Legal Implications
- Drsika Bhutani
- Jun 24
- 5 min read
The recent ruling by Germany’s Federal Court of Justice (BGH)[1] has sparked significant discussion about the intersection of design, functionality, and copyright law. At the heart of the case was whether Birkenstock’s iconic sandals qualify as "works of applied art" under German copyright law. The Court's decision that they do not, has broader implications for the protection of functional designs in the fashion industry.
The Legal Battle: Birkenstock vs. Copycats
Birkenstock, a globally recognised footwear brand, filed lawsuits against three competitors, accusing them of selling imitation sandals. The company argued that its designs were "copyright-protected works of applied art" under Section 2 (1) No. 4, (2) of the German Copyright Act (UrhG)[2]. This classification would have provided stronger protections than design rights, which expire after 25 years, as copyright protection lasts for 70 years after the creator's death.
The stakes were high for Birkenstock because the original designs by Karl Birkenstock date back to the 1970s, meaning their design protection had already expired[3]. Copyright status would have allowed Birkenstock to demand the removal and destruction of knockoffs while seeking damages and other remedies. However, both the Cologne Higher Regional Court and the BGH rejected these claims.
A Clash Between Functionality and Aesthetics
Birkenstock has long argued that its designs transcend functionality. The company claims inspiration from Brutalist architecture and asserts that its sandals embody unique aesthetic principles. However, critics argue that the brand’s primary appeal lies in its ergonomic features rather than artistic innovation. Industrial designer Grant Delgatty[4] noted that while Birkenstocks are iconic, their design is more about comfort than groundbreaking creativity.
Fashion historian Emily Brayshaw offered a nuanced perspective, describing Birkenstocks as “an amazing piece of applied art”[5] because even prioritizing function over aesthetics is an aesthetic choice. However, this view did not sway the court’s decision.
Why Birkenstocks Are Not Works of Art
Under German law, everyday objects like shoes can qualify as works of applied art if they exhibit a "personal intellectual creation" with a discernible level of artistic individuality. However, the Court ruled that Birkenstock’s sandals did not meet this standard. Presiding judge Thomas Koch emphasized that for copyright protection to apply, a design must reflect creative freedom beyond technical or functional constraints[6].
The Court found that while Birkenstocks are iconic and recognizable for their wide straps, cork soles, and orthopedic comfort, their design is primarily dictated by functionality rather than artistic expression. The ruling stated that "technical requirements, rules or other constraints determine the design," disqualifying them from copyright protection.
Implications for Design Protection
The ruling underscores a critical distinction in intellectual property law: the difference between design rights and copyright. Design rights protect functional products but expire after a limited period (25 years in Germany). Copyright offers longer-lasting protection but requires a higher standard of artistic creativity.
Birkenstock’s case highlights the challenges faced by companies seeking to protect functional designs. While some objects—such as furniture or cars—have successfully been classified as works of applied art, footwear often struggles to meet this threshold due to its inherent functional constraints[7].
A Market Impact: Freeing Competition
The BGH’s decision paves the way for increased competition in the footwear market. By rejecting excessive copyright limitations on functional products like sandals, the court ensures that competitors can legally produce similar designs without fear of infringement. This could lead to greater innovation and more affordable options for consumers.
Konstantin Wegner, Birkenstock’s lawyer, expressed disappointment with the ruling but hinted at further litigation efforts. Meanwhile, industry experts suggest that companies like Birkenstock may need to explore alternative strategies, such as trademarks, to safeguard their iconic designs[8].
The Indian Perspective
The German Federal Court ruling raises questions about how such cases might be treated in India. While intellectual property (IP) laws in India provide some avenues for protecting shoe designs, the framework and limitations differ significantly from Germany's, especially when it comes to the overlap between copyright and design protection.
Copyright and Design Protection in India
India’s legal framework for protecting fashion and footwear designs is governed by the Copyright Act, 1957, and the Designs Act, 2000. However, dual protection under these statutes is not allowed. Section 15(1) of the Copyright Act explicitly bars copyright protection for designs registered under the Designs Act. Conversely, Section 15(2) provides limited copyright protection for unregistered designs until more than 50 copies are reproduced through an industrial process.
This limitation would likely have significant implications for a case like Birkenstock’s if it were brought to Indian courts. Since Birkenstock's sandals are mass-produced, they would lose any copyright protection under Section 15(2) once they crossed the threshold of 50 reproductions. Without registration under the Designs Act, their protection would be minimal.
Challenges in Protecting Functional Designs
In India, as in Germany, functional products like shoes face challenges in securing copyright protection. To qualify as a "work of applied art" under Section 2(c) of the Copyright Act, a product must exhibit originality and artistic creativity beyond its functional purpose. Courts evaluate whether a design reflects "personal intellectual creation" or is primarily dictated by technical requirements.
For instance:
In Rajesh Masrani vs Tahiliani Design Pvt. Ltd.[9], the Court ruled that designs reproduced more than 50 times lose their copyright protection unless registered under the Designs Act.
Similarly, handcrafted or limited-edition items (e.g., Gaurav Gupta's garments) have successfully claimed copyright protection when their artistic elements were deemed distinct from functional considerations[10].
Birkenstock’s orthopedic sandals, designed primarily for comfort and functionality, might struggle to meet this standard in India as well.
Trademark as an Alternative Protection
In India, trademarks often serve as a more robust form of protection for iconic product features. For example:
Christian Louboutin successfully protected its signature "red sole" under trademark law in India, securing an injunction against counterfeiters[11].
Birkenstock could similarly register distinctive elements of its sandals, such as their cork soles or strap configurations—as trademarks to prevent imitation. Trademark law does not require a product to meet artistic standards; instead, it focuses on distinctiveness and brand association.
Implications for Competition and Innovation
The Indian legal framework aims to balance IP protection with market competition. The inability to secure long-term copyright for functional products like shoes ensures that competitors can innovate and offer similar designs at competitive prices. This aligns with the German court's reasoning that excessive copyright restrictions on functional designs could stifle competition and limit consumer choice.
Conclusion
The Birkenstock ruling is a landmark case in defining the boundaries between functionality and artistic creativity in copyright law. While it reaffirms that not all iconic designs qualify for copyright protection, it also highlights the importance of balancing intellectual property rights with market competition. For designers and businesses alike, this decision serves as both a cautionary tale and an opportunity to innovate within legal frameworks. In India, the case serves as a reminder of the challenges in protecting functional designs under copyright law. The Indian legal framework, which emphasizes distinctiveness and originality, offers opportunities for businesses to safeguard their designs through trademarks or design registration. As India continues to grow as a global hub for design and innovation, cases like Birkenstock's highlight the importance of aligning legal strategies with market realities to foster both creativity and competition.
References:
https://www.osborneclarke.com/insights/no-copyright-protection-birkenstock-sandals
https://www.insurancejournal.com/news/international/2025/02/21/812771.htm
https://news.artnet.com/art-world/german-court-rules-birkenstock-not-art-2611722
https://www.jdsupra.com/legalnews/german-birkenstock-decision-shows-the-7115226/
AIR 2009 DELHI 44, 2009
AIRONLINE 2018 DEL 1962
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