In the wood-panelled austerity of the German Federal Court of Justice (Bundesgerichtshof, or BGH) in Karlsruhe, an unlikely defendant recently stood at the epicentre of a modern cultural reckoning: the humble Birkenstock sandal. For more than two centuries, these cork-footbed, buckled icons have navigated the treacherous boundary between orthopaedic necessity and countercultural chic. Yet in early 2025, their maker’s audacious legal claim – that the sandals constitute “applied art” deserving of extended copyright protection – sparked a judicial firestorm that reached the highest echelons of European intellectual property law. On February 20, 2025, Germany’s highest civil court delivered a verdict as blunt and unyielding as the shoe’s utilitarian design. The sandals, the court determined, are not art. They are merely footwear.
The landmark ruling, which dismissed Birkenstock’s lawsuit against copycat competitors, has reverberated far beyond legal circles and corporate boardrooms. It has forced a renewed confrontation with existential questions that have plagued critics since the dawn of industrialisation: Where does craftsmanship end and artistry begin? Can mass-produced, highly functional objects transcend their utility to become legally recognised cultural artefacts? In an era where luxury fashion houses routinely market £500 raffia baskets as “sculptural objects,” and the aesthetics of the mundane are frequently elevated to high fashion, the court’s decision to draw a hard line at the Birkenstock sandal exposes a fundamental tension between how culture consumes design and how the law protects it.
From Orthopaedic Utility to Global Ubiquity
To understand the audacity of Birkenstock’s copyright claim, one must trace the brand’s resolutely unglamorous origins. Founded in 1774 by Johann Adam Birkenstock, the family business began as a village cobbler in Langen-Bergheim, Hesse, crafting shoes tailored to the physiological realities of weary feet. By the early 20th century, the brand had pivoted towards orthopaedic innovation, with Konrad Birkenstock patenting the anatomically contoured arch support in 1925. For decades, the Birkenstock aesthetic was unapologetically clinical. The sandals’ ascent from a podiatric aid to a counterculture emblem was gradual: 1960s hippies adopted them for their anti-fashion practicality, while 1990s grunge icons cemented their status as a subversive staple.
Yet, their 21st-century rebranding as a luxury accessory has complicated this historical narrative. Championed by transformative runway shows and subsequent official collaborations with haute couture powerhouses like Dior and Valentino, Birkenstocks entered a new stratosphere of cultural cachet. Suddenly, the very same sandals traditionally favoured by German hospital workers were being styled alongside £2,000 handbags. This duality – simultaneously utilitarian and fiercely aspirational – fuels Birkenstock’s contemporary identity. They have become less a shoe and more a signifier. As the brand evolved into a multibillion-pound enterprise, the stakes for protecting its signature silhouettes grew exponentially.
The Mechanics of Copyright vs. Design Protection
At the heart of the legal dispute was a strategic necessity driven by the strict limitations of intellectual property law. Historically, industrial designs such as shoes, furniture, and consumer electronics are protected by design rights. However, these rights are time-limited, generally expiring after a maximum of 25 years. Because Birkenstock’s most iconic models – the two-strap Arizona, the single-strap Madrid, the thong-style Gizeh, and the closed-toe Boston – were designed decades ago, their standard design protections have long since lapsed. This temporal expiration left the silhouettes vulnerable to perfectly legal imitation by competitors.
To combat this, Birkenstock sought refuge in the significantly more robust fortress of copyright law. Unlike design rights, copyright protection extends for 70 years following the death of the creator. Under the German Copyright Act, works of “applied art” can qualify for this extensive protection if they demonstrate a sufficient level of originality and creative achievement. Birkenstock argued that the distinct proportions, buckle placements, and sculptural contours of their classic sandals met this threshold, presenting an aesthetic choice that elevated them beyond mere functional objects.
The BGH Verdict: Function Over Form
The German judicial system, however, proved highly resistant to this philosophical elevation of the sandal. The case wound its way through the lower courts, with the Cologne Higher Regional Court initially denying copyright protection, prompting Birkenstock’s appeal to the Federal Court of Justice. On February 20, 2025, the BGH issued its definitive ruling in three parallel appeal proceedings. The verdict was a decisive blow to the footwear giant.
Presiding Judge Thomas Koch and his colleagues concluded that the designs of the Arizona, Madrid, Boston, and Gizeh models were primarily dictated by technical, functional, and ergonomic requirements rather than artistic choices. To qualify for copyright protection under German law, the court noted, an object must exhibit a level of creative freedom that has been artistically utilized. The BGH determined that while the sandals are universally recognisable, their form is so tightly bound to their orthopaedic function – the specific footbed, the necessary placement of straps to secure the foot – that there was insufficient creative leeway exercised to constitute a work of art. The court emphasised that while everyday items can theoretically achieve copyright protection, they must reflect an individual’s creative personality and transcend the mundane. In the eyes of the German law, a Birkenstock is a highly effective tool for walking, but it is not a canvas.
This ruling underscores a strict, conservative interpretation of applied art in German jurisprudence. It prevents companies from using copyright as a backdoor to secure eternal monopolies over industrial designs once their legitimate design patents expire. If Birkenstock had succeeded, it could have fundamentally altered the landscape of product manufacturing, potentially stifling competition in markets built on iterative design.
A Fractured European Landscape: The Dutch Divergence
If the BGH ruling seemed to settle the matter, the broader European legal landscape quickly proved far more chaotic. In November 2025, Birkenstock found itself celebrating a legal victory that directly contradicted the German courts. In a separate copyright infringement case brought against the Dutch retailer Scapino, the District Court of Midden-Nederland ruled in favour of the footwear brand.
The Dutch court explicitly acknowledged the February ruling of the German BGH but boldly declared that it had reached a different conclusion under its own interpretation of European copyright principles. The Dutch judges found that the specific sandal models in question did, in fact, possess the necessary originality to qualify for copyright protection within their jurisdiction. They ordered Scapino to cease selling the imitation footwear, highlighting a profound and ongoing lack of harmonisation in how European nations interpret the artistic merit of applied design.
This legal schism creates a logistical nightmare for global brands and exposes the subjective fragility of intellectual property law. How can a shoe be a utilitarian object devoid of artistic merit in Karlsruhe, but a protected work of applied art a few hundred miles away in Utrecht? The contradiction reveals that legal definitions of art are frequently as subjective as aesthetic tastes.
Fashion’s Elastic Definition of Art
The fashion and museum sectors have largely bristled at the strict functionalism of the German courts. Curators and historians have long argued that utility does not negate artistry. In major institutions across the globe, the distinction between “high art” and “applied Design” has been aggressively dismantled. Museum exhibitions regularly feature Birkenstocks alongside 18th-century silk slippers and avant-garde Alexander McQueen armadillo heels, treating them as equally vital cultural texts.
Critics point out a perceived hypocrisy in legal precedents. Consider Christian Louboutin’s successful trademarking of his signature red-lacquered soles. While that battle was fought over trademark rather than copyright, it demonstrated the legal system’s willingness to protect aesthetic flourishes that serve no physical function. Louboutin’s red sole exists purely as a branding mechanism. Birkenstock’s predicament lies in the fact that its aesthetic identity is inextricably linked to its ergonomic purpose. The brand is being penalised, in a legal sense, for the very functional excellence that made it famous.
The Commodification of Authenticity
As the dust settles on the 2025 legal skirmishes, Birkenstock’s sandals remain in a state of jurisprudential limbo – revered by the global fashion elite, selectively protected by the Dutch, dismissed by German jurists, and relentlessly replicated by budget retailers worldwide. Their legal journey mirrors a much broader tension in contemporary culture: the corporate struggle to commodify and monopolise authenticity.
For Birkenstock, the path forward will likely involve a heavier reliance on trademark enforcement – a notoriously tricky avenue that protects logos and brand identifiers rather than the physical shape of the product itself. In a market saturated with “dupes” and fast-fashion replicas, the brand must rely on the intangible aura of its heritage. Consumers who purchase a genuine Arizona sandal are not merely buying a cork footbed; they are buying into a specific cultural lineage that an imitation cannot replicate.
We frequently observe how cultural narratives are shaped by the spectacle of power and perception – a theme similarly explored in recent cinematic critiques like The Wizard of the Kremlin. In the case of Birkenstock, the spectacle is playing out in the courtroom. Whether deemed an orthopaedic necessity or a masterpiece of applied art, the sandal has proven its enduring relevance. The German courts may have ruled that it is merely a shoe, but the culture at large has clearly decided it is something much more.
