Starting from the same category of objects, namely shoes, and on the basis of uniform legislation, the higher courts of two European countries have simultaneously reached opposite conclusions on the possibility of protecting their design through copyright.
Both decisions were based on the cornerstones of European case law on the subject, namely the Infopaq of 2009 and Cofemel of 2019 of the Court of Justice, which shared the principle that copyright protection is reserved solely for forms of expression that reflect the personality of the author and are therefore the result of his or her free creative choices.
On 17 March 2025, the Maritime and Commercial High Court of Denmark recognised copyright protection for the design of Ganni’s ‘Buckle Ballerina’, whereas on 20 February 2025, the German Federal Court had denied such protection to the shape of certain models of the well-known Birkenstock sandals.
In both cases, having corresponding evidence regarding the widespread use and appreciation of the shapes in question in a wide variety of environments, the two courts appear to have reached opposite conclusions based on the subjective status of the creator: free and attesting to a personal vision of the concept of ‘coolness’ in the case of the ‘Buckle Ballerina’, conditioned by commercial purpose and ergonomic functionality in the case of Birkenstock sandals.
The point that emerges is interesting and deserves to be taken into account when addressing the issue of copyright protection for the shape of an industrial product.