With the sentence I ZR 16/24, published on the 25th of February 2025, the German Federal Court rejected Birkenstock’s appeal excluding copyright protection for the shape of some well-known sandal models.
The German copyright law, the Urheberrechtsgesetz of October 9th, 1965, in articles 2 no. 4 and 2.2, limits protection to creations that are the result of a creative and original effort of the author and that reflect his individual personality. An essential element to access this protection is, however, creative freedom: if the form is strongly influenced by technical or functional requirements, the author’s protection is excluded.
Applying this rule, the Federal Court found that the shape of the sandal model was dictated by functionality, thus excluding any artistic individuality and limiting the duration of protection to the 25 years typical of industrial designs.
The Court’s decision seems to be determined by the assessment of the subjective state of the author, more precisely by the evidence that he created the shape of these sandals for purely commercial purposes, a circumstance that was considered to prevail over the evidence of the use of specific aesthetic design elements (influenced by architectural brutalism), craftsmanship and the display of the models in museums and design exhibitions, which Birkenstock had also submitted.
The criteria adopted by the German Court seem to be in line with the European jurisprudence, so much so that the judgment explicitly refers to the Court’s judgment of 2019 in the well-known Cofemel case, where it is expressly stated that the protection of authorship is reserved for forms of expression capable of reflecting “the personality of the author as an expression of free creative choices“.
On the other hand, it differs from the typical guidelines of the common law systems, which, by emphasising the mere human work involved and disregarding the assessment of the existence of a subjective stylistic contribution by the author, would tend to broaden the “protected work” giving rise to exclusivity whose sustainability is doubted by many.