In February 2025, inside the wood-panelled chambers of Germany’s Federal Court of Justice in Karlsruhe, presiding judge Thomas Koch delivered a verdict that reverberated far beyond the legal profession. “The claims are unfounded because they are not copyright-protected works of applied art,” Koch declared, dismissing Birkenstock’s sweeping lawsuit against three competitors selling near-identical copies of the company’s most iconic sandals. The Arizona, Madrid, Boston, and Gizeh models – those cork-footed, buckled staples worn by everyone from Berlin pensioners to Balenciaga models – were, in the eyes of the law, nothing more than functional objects.
Birkenstock had argued that its sandal designs, first created by Karl Birkenstock in the 1960s and 1970s, constituted works of applied art under Section 2(1) No. 4 of the German Copyright Act, meriting protection lasting 70 years after the creator’s death. That was far more generous than the 25-year maximum for registered design rights, which had already expired on the earliest models. Copyright was the company’s last line of defence against an army of imitators. The Federal Court’s answer was blunt: creativity constrained by technical necessity does not qualify.
The Anatomy of a Legal Defeat
The case originated in 2023, when Birkenstock filed lawsuits before the Regional Court of Cologne, claiming that three competitors’ sandals infringed its copyright. At first instance, Cologne’s court sided with Birkenstock, praising the sandals’ “harmonious balance of form and function.” But the Higher Regional Court reversed that decision on appeal, finding that Birkenstock had failed to demonstrate creative freedom beyond mere technical requirements. The BGH concurred with the appellate court.
The crux turned on a principle German copyright law has long upheld: for an everyday object to qualify as a work of applied art, it must exhibit a level of creativity revealing the author’s individuality. The design cannot be dictated primarily by technical constraints, ergonomic requirements, or rules of construction. The BGH found Birkenstock’s sandals fell short. While acknowledging “room for manoeuvre” existed in footwear design, the court concluded the company had not demonstrated the sandals utilised that creative leeway to a degree “worthy of protection.”
Dr. Ricardo Vocke-Kerkhof, a senior associate at GÖRG Partnerschaft who analysed the ruling for German Law International, confirmed the reasoning. “The Federal Court’s ruling affirmed that the design of Birkenstock sandals is largely determined by functional requirements and therefore does not exhibit artistic freedom in the sense of copyright law,” he wrote in March 2025.
Heritage Meets a Modern Problem
The ruling forced a confrontation with a painful irony. Birkenstock had spent the better part of a decade transforming its image from orthopaedic workhorse to luxury cultural artefact. Founded in 1774, the brand pivoted to orthopaedic innovation in the 20th century. The sandals’ ascent from clinical aid to countercultural icon was gradual – adopted by 1960s hippies, cemented by Kurt Cobain, then catapulted into the luxury stratosphere by Phoebe Philo’s 2013 Céline runway show and collaborations with Dior, Stüssy, and Rick Owens.
The financial trajectory confirmed the transformation. Birkenstock reported fiscal year 2025 revenue of €2.1 billion, up 16 per cent from the prior year and ahead of its own guidance. Net income reached €348 million, an 82 per cent increase on fiscal 2024. The company, which listed on the New York Stock Exchange in October 2023 with a valuation of approximately $8 billion, had grown revenue by more than 100 per cent over three years. CEO Oliver Reichert’s 2020 assertion that “we’re not selling shoes – we’re selling a mindset” had proved commercially prescient.
Yet the Karlsruhe ruling exposed the gap between cultural perception and legal classification. Museums exhibited Birkenstock sandals alongside 18th-century embroidered slippers. The V&A’s 2022 Footwear: Anatomy of Fashion show featured the Arizona as a design artefact. High-fashion collaborations commanded four-figure price tags. But courts remained unmoved. “A designer chair or Art Deco lamp can qualify as applied art,” observed Dr. Helena Wolff, an IP scholar at Humboldt University. “But footwear? Courts often dismiss wearable items as ‘mundane,’ regardless of their cultural impact.”
The EU Twist That Complicates Everything
Ten months after the BGH ruling, on 4 December 2025, the Court of Justice of the European Union issued a landmark judgment in the joined cases of Mio v Asplund and USM v Konektra – disputes involving furniture design that addressed precisely the questions at the heart of the Birkenstock saga.
The CJEU’s ruling was unequivocal. Works of applied art “must be treated no differently from any other category of works” for copyright purposes. “There is no relationship of rule and exception between design protection and copyright protection,” the Court stated, rejecting the notion that functional objects should face a higher originality threshold. The only requirement was that the work reflect “free and creative decisions” of its author.
The implications were immediately apparent. While the ruling concerned furniture rather than footwear, it established an EU-wide framework that national courts were bound to follow. As Garrigues partner João Miranda de Sousa noted, the decision “represents a decisive step toward eliminating long-standing national divergences.” For applied-art creators across the EU, the message was clear: the creative threshold must not be artificially inflated by an object’s utility.
The tension was stark. Germany’s highest court had concluded that Birkenstock’s sandals lacked sufficient creative freedom. The CJEU, weeks later, declared that the originality standard must not differ for applied art. Whether Birkenstock might revisit the question under the revised EU framework remained an open question, but the legal ground had undeniably shifted.
What Copyright Denial Means on the Ground
The practical consequences were immediate. Without copyright protection, Birkenstock could no longer pursue the broadest remedies against imitators. Trademark law offered a narrower shield – it protected the Birkenstock name, but not the shape of the sandal. As Claudia Fischer, an IP lawyer, explained: “Trademarks protect logos, not shapes. Without copyright, anyone can replicate the sandal’s form, minus the Birkenstock stamp.”
The market responded swiftly. German retailer Lunge began offering near-identical sandals at roughly half the Birkenstock price, marketing them as delivering “Birkenstock comfort without the branding tax.” The Tamaris Pantolette, available in 15 colourways for approximately €60 compared to €85 or more for a standard Arizona in velour leather, became a mainstream alternative by summer 2026. Fast-fashion brands across Europe and North America expanded their clone ranges.
The ruling also illuminated the peculiar asymmetry at the heart of fashion IP. Christian Louboutin’s trademarked red sole, Apple’s design patents on iPhone form factors, and luxury houses’ trade dress registrations all offered varying degrees of shape protection. But Birkenstock’s core challenge – that the sandal’s appearance was inseparable from its ergonomic function – placed it in a category existing law struggled to accommodate. As footwear industry analyst Marc Schneider observed: “Every sneaker brand iterates on predecessors. If Adidas copyrighted the Stan Smith, where would that leave us?”
Fashion’s Existential Question
The Birkenstock case crystallised a debate that has simmered in fashion law for decades: where does craftsmanship end and artistry begin? The fashion establishment bristled at the ruling. “It’s hypocrisy,” asserted curator Mathilde Laurent. “Museums exhibit Schiaparelli’s lobster dresses and McQueen’s armadillo shoes as art. Why not Birkenstocks?”
But courts and curators operate by different logics. As the CJEU clarified in Mio/Konektra, originality requires demonstrable “free and creative choices reflecting the author’s personality” – not merely cultural resonance or aesthetic appeal. The fact that an object is displayed in the V&A or styled on a Céline runway does not, in law, transform function into art. What mattered was whether the object’s form expressed choices that were genuinely free rather than dictated by purpose.
For Birkenstock, that distinction was devastating. The contoured footbed, the wide leather straps, the adjustable buckles – these were elements optimised over centuries for podiatric health, not aesthetic expression. Their beauty, if beauty it was, emerged from function rather than despite it. And that, in the court’s estimation, was precisely the problem.
What Comes Next
Birkenstock’s fiscal 2025 results demonstrated that commercial appeal was not contingent on legal protection – revenue grew robustly, margins expanded, and the company set fiscal 2026 targets with confidence. Yet the IP vulnerability remained, and insiders hinted at a pivot toward designs so distinctive that copying would be commercially futile. “If courts won’t protect our classics, we’ll create designs too distinctive to copy,” a company source indicated.
The CJEU’s December 2025 ruling offered a potential long-term pathway by establishing that applied art need not meet a higher originality threshold. But as Simon De Brauw’s Robert van Hattum noted, this “requires expert evidence, technical documentation and detailed visual comparisons,” raising the evidentiary bar even as the legal standard was clarified.
For the broader fashion industry, the Birkenstock saga was both cautionary tale and call to action. Brands seeking shape protection would increasingly need to rely on design registrations – requiring periodic renewal and limited exclusivity – rather than the potentially indefinite shield of copyright. The era of relying on cultural cachet as a substitute for formal legal protection was ending. In a wood-panelled courtroom in Karlsruhe, the court drew its line. The sandal, for all its cultural resonance, remained a sandal. Whether that boundary would hold as EU copyright law evolved remained one of fashion’s most fascinating open questions.
