Birkenstock: the BGH's orthopaedic approach to originality

This decision follows an earlier and equally problematic ruling of the BGH in Birkenstock-Sohle II (Case I ZR 1/19, GRUR 2021, 539), delivered on 14 January 2021, in which the Court rejected copyright protection for a wave-like repetitive sole pattern used on Birkenstock footwear. In that case too, the Court relied on the absence of sufficient creative individuality, applying a standard that failed to reflect the harmonised originality threshold under EU law.

The reasoning in both judgments was based on the assertion that the sandals' visual and structural features were predominantly shaped by functional considerations and did not embody a sufficient degree of personal intellectual creation to meet the standard of protectability. However, this reasoning is manifestly irreconcilable with the harmonised originality standard established under EU law. As the CJEU has consistently held since Infopaq International A/S v Danske Dagblades Forening (C-5/08, EU:C:2009:465), the concept of a "work" under Directive 2001/29/EC must be interpreted autonomously and uniformly across the EU legal order. A work is protectable if it is the result of the author's own intellectual creation, reflecting free and creative choices.

This principle was reaffirmed and clarified in Cofemel – Sociedade de Vestuário SA v G-Star Raw CV (C‑683/17, EU:C:2019:721), where the CJEU confirmed that Member States may not impose additional criteria such as artistic merit or heightened originality thresholds, for the protection of works of applied art. The Court thus disavowed national doctrines such as the German Stufentheorie or Schöpfungshöhe, which impose requirements exceeding the EU standard of originality.

In maintaining that Birkenstock’s sandal models did not embody sufficient creative freedom, the BGH failed to consider whether the designs were the result of free and creative choices within the meaning of Cofemel and Infopaq. Furthermore, the BGH’s conclusion that the sandals’ form was primarily dictated by ergonomic and functional concerns neglects the crucial qualification set forth in Brompton Bicycle Ltd v Chedech/Get2Get (C‑833/18, EU:C:2020:461): namely, that even functional products can be protected provided that their appearance is not solely dictated by technical function, and that alternative configurations were available.

The BGH's failure to inquire into the range of aesthetic or compositional freedom available to the designer, or into the presence of alternative design expressions, falls short of the analytical standard required under Brompton Bicycle. Instead, it perpetuates a national formalism that has been consistently rejected by the CJEU.

The ongoing relevance of these issues is underscored by the recent references for preliminary rulings in the joined cases Mio and USM (C‑580/23 and C‑795/23), in which the Austrian Supreme Court seeks clarification from the CJEU on the application of the originality criterion to functional designs. These references reinforce the urgency of ensuring national courts do not impose artificial barriers such as the supposed absence of artistic merit, when evaluating originality in the context of utilitarian objects.

By failing to align its analysis with the CJEU's well-established case law, the BGH has not only misapplied the relevant EU legal standards, but has also undermined the uniform application of copyright protection across the internal market. The resulting fragmentation impairs legal certainty, disincentivises innovation in design-led sectors, and compromises the principle of cumulative protection, a legitimate feature of the EU intellectual property system.

The BGH’s rulings of 20 February 2025 and its earlier decision of 14 January 2021 in Birkenstock-Sohle II are not merely doctrinally outdated; they are legally unsustainable in light of the CJEU’s consistent interpretation of the originality standard in Infopaq, Cofemel, Brompton Bicycle, and the pending Mio and USM matters. The judgments reflect an entrenched national formalism incompatible with the objectives and legal framework of EU copyright law. 

We truly hope that these decisions will be overturned by a future judgment of the BGH or the CJEU, to prevent further erosion of harmonisation within the Union. And should you have any questions arising from these decisions, whether regarding the scope of copyright protection for works of applied art or other matters relating to intellectual property law, please do not hesitate to contact us at info@dcp-ip.com. We remain at your full disposal for a tailored discussion of your specific case.