The German Federal Court of Justice (BGH) once again dealt with the copyright protection of everyday objects: The well-known shoe manufacturer Birkenstock sued in three parallel proceedings against retailers who each offer their own shoe models that are similar to four Birkenstock models. The case focused on whether the Birkenstock models were works of applied art. The judgement was delivered on 20 February 2025 (Ref. BGH I ZR 16/24, I ZR 17/24 and I ZR 18/24).
1. The facts
Birkenstock filed a claim based on alleged copyright infringement against the retailers for injunctive relief, determination of their liability for damages and reimbursement of costs.
In general, shoes can be protected by copyright as a work of applied art. At first instance, the Cologne Regional Court ruled that the shoes qualify as copyrighted works (judgements of 23 February 2023 - Ref. 14 O 39/22, 14 O 41/22 and 14 O 121/22). The Cologne Higher Regional Court rejected the copyright protection of the Birkenstock sandals on the grounds that the design was based exclusively on technical and functional considerations (Cologne Higher Regional Court, judgements of 26 January 2024 - Ref. 6 U 86/23, 6 U 85/23 and 6 U 89/23).
2. The decision of the BGH
The BGH confirmed the decision of the Cologne Higher Regional Court. The design of the Birkenstock sandals is based exclusively on technical requirements and formal design elements and therefore does not constitute a “creative design”.
Although the specific design of the footbed and the fastening of the straps of the Birkenstock sandals were not necessary based on technical considerations, the remaining creative scope was not used beyond common everyday design.
The manufacturer, Karl Birkenstock, had stuck to well-known designs and had “remained within the bounds of the craftsmanship of a shoemaker or orthopaedic shoemaker”. The BGH had already ruled in the past that purely handcrafted creations are not eligible for copyright protection (see, for example, the BGH judgment of 16. April 2015 – Az. I ZR 225/12 – Goldrapper) and has now confirmed this for everyday objects as well.
3. The context: Development of the case law on copyright protection for everyday objects
The decision is in line with the BGH's case law on the question of copyright protection for everyday objects. The question is important because of the significantly longer term of protection of copyright law (70 years from the death of the author) than design law (maximum 25 years from registration).
In the “Birthday Train” (“Geburtstagszug”) decision (BGH, judgement of 13 November 2013 - case no. I ZR 143/12), the BGH stated that the same requirements regarding the level of creativity must be met for the protection of works of applied art as for other works of "traditional" art. Both, design and copyright protection can apply to the same subject matter. The decisive factor for copyright protection is that there is a scope for “creative design” that has been used in an “artistic manner”. At the same time, the BGH said that the design of an everyday object cannot be protected if it is purely derived from the purpose of its use and is only based on technical and functional considerations. A prerequisite for a work being considered the author's own intellectual creation is that the author has a certain degree of freedom to express his or her creative spirit in an original way.
In the Birkenstock decision, the BGH explains that these requirements for copyright protection also essentially correspond to the requirements for copyright protection to be applied uniformly under EU law, set out by the ECJ in the Cofemel decision (ECJ, judgement of 12 September 2019 - C-683/17), among others: Firstly, the object in question must be an "original" in the sense that it is its author's own intellectual creation. Furthermore, only those elements of the work in which the creation is actually expressed are protected. The ECJ has continued to follow these requirements in, among others, the decisions Brompton Bicycle (ECJ, judgment of June 11, 2020 - C-833/18 SI, Brompton Bicycle Ltd/Chedech/Get2Get) and Kwantum Nederland (ECJ, judgment of October 24, 2024 – C-227/23, Kwantum Nederland BV and others/Vitra Collections AG) and adds that a design that is predetermined exclusively by its technical function cannot be protected by copyright. This requires a case-by-case assessment.
4. Requirements for an infringement of copyright for works of applied art
Even if a work of applied art reaches the level of creativity necessary for copyright protection, the requirements for an infringement of copyright can be strict: The BGH specified these in the “Porsche” decision (BGH, judgement of 7 April 2022 - case no. I ZR 222/20): In a comprehensive overview, the objective characteristics that determine the creative originality of the work are identified. The next step is to determine which of these characteristics have been adopted by the potentially infringing object. The BGH interprets the scope of protection for works of applied art the more narrowly, the lower the level of creative design of the object in question is. If the design of a work is primarily based on technical considerations, the level of creative design will be low. In this case, even small differences will mean that no infringement occurs.
5. Outlook: Current referrals to the ECJ on copyright protection for everyday objects: USM Haller and Mio AB
The case law on the copyright protection of everyday objects is also at the core of two pending cases for a preliminary ruling by the ECJ, which also concern the requirements for the protection of applied art (in this specific case, designer furniture). According to the BGH, the decision of the ECJ should not be decisive in the Birkenstock case, since the Birkenstock sandals would not be protected even if the ECJ were to decide on the questions referred for a preliminary ruling in favor of the authors.
In a case concerning the protection of USM Haller furniture, the BGH referred questions on the requirements for copyright protection to the ECJ: (ECJ case C-765/23) and wants to clarify whether copyright protection is possible if the creator was not aware of his creative scope, and whether the protection of works of applied art requires a higher degree of originality than that of "traditional" art. The Swedish Court of Appeal (svea hovrätt) asked the ECJ whether and to what extent existing designs are relevant for determining the originality of a work (ECJ case C-580/23). The previously known forms of a design play an important role in determining the copyright protection of everyday objects. In its Porsche decision, the BGH clarified that the scope of copyright protection is limited in the case of a design that is mainly based on a known set of previous forms. In such cases, only identical designs or designs with marginal differences result in an infringement of copyright.
