Do you aspire to become a work of art or merely to wear one? (for insights into how a celebrated fashion icon resolved this dilemma, see yesterday's post). And when you slide into a pair of Birkenstock sandals, do you feel you're donning a simple shoe or an authentic masterpiece?
This seemingly whimsical question has taken on a serious dimension before the First Civil Senate of the Federal Court of Justice (BGH) in Germany. The court is tasked with determining whether the iconic cork-soled sandals should be legally recognized as works of art, a status that could redefine the boundaries of design protection in Germany.
The Birkenstock legacy dates back to the 18th century, when Johannes Birkenstock laid the foundation of a shoemaking dynasty. The brand's signature cork footbed, introduced in the 1960s, became synonymous with comfort and durability. While initially regarded as practical footwear, Birkenstock sandals have since ascended to the realm of high fashion. Notable milestones include a 2003 collaboration with Heidi Klum, and appearances on the feet of cultural icons ranging from Sarah Jessica Parker of Sex and the City fame to Apple founder Steve Jobs (whose well-worn pair sold for nearly $220,000 at an auction in 2022).
Actress Frances McDormand famously paired the sandals with an evening gown at the 91st Annual Academy Awards in 2019. Recent partnerships with luxury brands like Valentino and Rick Owens have further elevated the sandals.
However, legal challenges loom for the German brand, now publicly traded on the New York Stock Exchange. The expiration of design protections for its classic models has left Birkenstock relying on a rather interesting argument: positioning its products as art to safeguard them from imitation.
To this end, the company has initiated legal proceedings to protect its most iconic designs - the two-strap Arizona, the single-strap Madrid, the thong-style Gizeh, and the Boston clog - from unauthorized copies.
Initially, Birkenstock secured victories against retailers Tchibo, the Danish fashion group Bestseller (parent company of brands such as Jack & Jones, ONLY, and Vero Moda), and Shoe.com in the Cologne Regional Court. However, these decisions were subsequently overturned by the Cologne Higher Regional Court, which dismissed Birkenstock's claims.
In its reasoning, the Higher Regional Court (OLG) concluded that the sandals did not meet the required threshold of creativity, emphasizing the functional nature of the designs. According to the court, "Art begins with an idea; design begins with a task."
Birkenstock contends instead that its sandals qualify as works of applied art, asserting that the distinct combination of individual elements, that is the buckles, materials, and precise strap placement, elevates them beyond mere functionality. According to the company, these features render the sandals eligible for protection under copyright law.
Everyday objects can actually qualify as functional art if their design demonstrates sufficient artistic merit: courts have previously extended copyright protection to designs like the Porsche 356, recognized as a work of applied art by a court ruling in April 2022.
Currently, the dispute has divided into two clear factions. Representing Birkenstock, BGH barrister Christian Rohnke, along with SKW Schwarz's copyright partner Konstantin Wegner and media, licensing, and law partner Johann Heyde, argue in favor of the shoes as art. Opposing them are the legal teams for retail rivals Tchibo and the Bestseller Group led by Hogan Lovells IP partner Morten Petersenn and BGH attorney Matthias Koch, as well as Shoe.com, represented by SSM IP partner Johann Bauer and BGH attorney Norbert Tretter.
During yesterday's proceedings, presiding judge Thomas Koch suggested that the Higher Regional Court's ruling might stand as the court appeared to have applied the appropriate criteria in its decision. However, Birkenstock's legal team countered that the OLG had relied on a definition of art exceeding established jurisprudence from both the BGH and the European Court of Justice.
Specifically, Birkenstock disputed the OLG's assertion that art must be free of purpose and economic objectives, challenging this interpretation. Birkenstock disputed the OLG's assertion that art must be free of purpose and economic objectives.
The notion that art must be entirely free of purpose or economic considerations is highly debatable. Art rarely exists in a vacuum, as even works created with the purest expressive intent are embedded within broader cultural, social, and economic frameworks. Purpose and economic implications are often inseparable, whether explicitly intended by the artist or not.
For instance, art frequently serves as social commentary (think about Banksy's provocative street art or Barbara Kruger's incisive text-based works, which undeniably have defined objectives). Similarly, art can be highly commercial, consider Damien Hirst's "For the Love of God", a platinum skull encrusted with diamonds. While it may critique the art market - clearly a purpose - it was also conceived and sold with strong economic motivations.
If the BGH rules in favor of Birkenstock, declaring its sandals to be works of art, the designs would gain special protection under copyright law, prohibiting imitation for up to 70 years after the death of their creator, Karl Birkenstock, who is still living.
Conversely, a ruling against Birkenstock could open the door for competitors to imitate its designs, but it would also set a critical precedent, offering clearer guidance on how courts should evaluate similar cases in the future.
As of now, the timing of the BGH's decision remains uncertain. Meanwhile, a related lawsuit is pending before the Hamburg Higher Regional Court, where judges have indicated support for Birkenstock's arguments, potentially signaling a divergence in judicial interpretations.
Cases from other jurisdictions may offer valuable insights for the German courts. In 2021, the Court of Milan addressed a strikingly similar issue when Italian influencer Chiara Ferragni began producing "snow boots" nearly identical to Tecnica's iconic Moon Boots. Tecnica sued for copyright infringement, and the Court ruled in its favor, holding that the Moon Boots were protected by copyright due to their "artistic value."
The Court emphasized that determining "artistic value" requires examining the work's relevance within the cultural sector. The Moon Boots' inclusion in prominent museum exhibitions, such as the Louvre and MoMA, proved decisive in establishing their artistic merit. As a result, Ferragni's "snow boots" were deemed infringing, and the Court ordered her to cease production and compensate Tecnica for damages.
Yet the judges may also be influenced by the case between Balenciaga and Birkenstock (even though this one focused more on a specific design and on individual character): in 2021, Balenciaga filed a challenge against Birkenstock, claiming that the Arizona Big Buckle sandal lacked the individual character required for design protection. Balenciaga argued indeed that the design was strikingly similar to an existing sandal released by Next in 2018.
In September 2024, a European trademark appeals board ruled in favor of Balenciaga, invalidating one of Birkenstocks registered designs and stating that Birkenstock's Arizona Big Buckle design did not meet the threshold for individual character, as a similar design had already been made publicly available prior to Birkenstock's filing.
That said it is undeniable that Birkenstock's designs share an iconic status similar to that of the Moon Boots. The brand's sandals have been featured in various fashion exhibitions, included in museum collections, and frequently highlighted on fashion runways as statement pieces. Additionally, their cultural impact has extended into popular media. For instance, in Greta Gerwig's 2023 blockbuster Barbie, the Birkenstock Arizona became a metaphorical symbol. In the film Stereotypical Barbie (Margot Robbie) is asked by Weird Barbie (Kate McKinnon) to choose between two paths: staying in the idealized Barbieland or venturing into the real world for self-discovery. The choice is represented by a pale pink high-heel pump for Barbieland and a brown Birkenstock Arizona sandal for the real world.
Whether Birkenstock's sandals are functional objects or works of art, practical footwear or cultural metaphors, the decision ultimately rests with the judges. Until then, the case invites us all to reflect on what it means to create a design that transcends trends, evolves into a timeless icon, and perhaps even ascends to the realm of art.
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