Sandals in court – the Birkenstock case and IP strategy for functional objects

The Birkenstock case and its significance for the assessment of applied art in Norway

Birkenstock sued an online retailer of sandals for infringement of copyrights that Birkenstock claimed to hold. After winning in the first instance and losing in the second instance, Germany's Federal Court (Bundesgerichtshof, ‘BGH’) rejected Birkenstock's appeal in February 2025 and concluded that the sandals did not qualify for copyright protection. The decision can be found here (in German). The BGH agreed with the court of second instance that the sandals did not meet the requirement of originality.

The European Court of Justice has established through case law that applied art is subject to the same originality threshold as other categories of creative works. The BGH concluded that the sandals’ visual and aesthetic design was largely shaped by functional and ergonomic requirements. The design was considered to reflect practical craftsmanship rather than creative and artistic elements.

In Norway, discussions have centered on whether the ruling, which is not legally binding for Norwegian courts, may nevertheless carry weight as a legal source. Norway and Germany are subject to the same EU copyright framework, under which the requirement for originality is harmonised.

This type of comparative approach is well established in Norwegian legal practice. The previous Norwegian Copyright Act (1960) was the product of joint Nordic cooperation, and in the absence of national decisions, legal practitioners drew support from Danish and Swedish case law. As the current Norwegian Copyright Act is derived from EU directives, it is logical to consult the case law of other EU and EEA states. However, such decisions should be understood as interpretative contributions within a common legal framework. They cannot be treated as autonomous sources of law capable of changing applicable law. It must also be acknowledged that the BGH's decision is based on the actual evidence presented by the parties in the court proceedings. A different presentation of facts could have led to a different outcome, both in Germany and in Norway.

Two lawyers, three opinions

The fact that such cases rely on judicial discretion and specific factual circumstances, is further illustrated by a Dutch decision in the first instance of 12 November 2025. The court concluded that several of Birkenstock's sandal models nevertheless enjoy copyright protection, despite the fact that the Dutch court applied German law and was familiar with the BGH's decision from February of the same year. The judgment can be found here (in Dutch). Because the assessment of originality in applied art is a demanding balancing act between form and function of the specific object, the transferability of individual court decisions to later cases may be limited.

The demarcation line in the assessment of applied art is a recurring theme in the case law of the European Court of Justice (‘ECJ’). Several questions on this issue were addressed by the European Court of Justice on 4 December 2025 in joined cases C-580/23 and C-795/23, which concerned copyright protection of dining tables and modular furniture systems, respectively. The judgments can be read here. Although the European Court of Justice maintains a fairly consistent approach to assessing applied art, national courts will likely raise further questions about the assessment in the future.

IPR strategy as background to the dispute

The Birkenstock case enables lawyers to have lengthy academic discussions regarding the scope and limitations of copyright. At the same time, it can provide businesses with an interesting insight into Birkenstock’s approach to intellectual property and should be taken as an opportunity to review and evaluate their own approach and strategy in this area.

The sandal models in question were launched on the market between 1963 and 1983. Design rights to the basic shape are protected for a maximum of 25 years after registration, cf. Article 12(2) of the Design Regulation. Since this protection period has expired in several jurisdictions, countless suppliers of nearly identical sandal models are now on the market.  Protection against such product imitation relies on several "soft" conditions and is generally harder to enforce in practice than the exclusive rights granted under design and trademark law, copyright law and patent law. It is therefore logical that Birkenstock seeks to secure exclusive rights to its sandals in order to protect the market share of its most popular models.

Birkenstock has attempted to obtain trademark protection in the EU for the classic pattern on the underside of the outsole. The application was rejected by EUIPO because the sole lacked distinctive character. In 2024, Birkenstock registered a modified version of the sole, with the name "BIRKENSTOCK" embedded in the grooves of the pattern.

However, exclusive copyright would have placed Birkenstock in a significantly stronger position, as the right would have remained valid until the end of this century. This would enable the company to demand removal of competing sandal models that are too similar to those of Birkenstock from the market.  This may explain why Birkenstock is investing significant resources on litigating the case across multiple jurisdictions and through several courts.

Birkenstock is far from the only company pursuing this enforcement strategy. Many businesses seek to extend the protection granted by patent or design rights by strategically registering trademarks and/or establishing copyright protection.

The Tripp Trapp chair – a Norwegian example of successful enforcement

A well-known Norwegian example of successful enforcement of IP rights is the Tripp Trapp chair, designed by Peter Opsvik for Stokke AS. The chair features a distinctive silhouette and adjustable seat and footplates. The mechanism was protected by patent from 1972 to 1992. When the patent expired, several competitors began producing similar chairs, prompting Stokke AS to initiate copyright infringement lawsuits in several jurisdictions. In the years that followed, the Supreme Courts of  Norway, Denmark, Germany and others ruled that the chair qualifies as a copyright protected work. Stokke AS has won most of the lawsuits filed. This has compelled Stokke AS's competitors to create chair designs that are sufficiently different from the Tripp Trapp chair. In turn, this has contributed to securing and maintaining the Tripp Trapp chair's unique market position.

Long-term IP strategy as a competitive advantage

The experiences of Stokke AS and international players such as Birkenstock demonstrate that a deliberate and long-term IP strategy is essential to maintaining a competitive advantage amid increased product imitation and global competition. For all businesses, but particularly for those in design-intensive industries, technology and consumer-oriented products, this should serve as a reminder to continuously assess how copyrights, trademarks and other intangible assets can be documented, managed and enforced in line with the company's commercial development.

SANDS has extensive experience in assisting companies of all sizes in developing tailored IPR strategies and enforcing rights against infringements. Reach out to us to discuss how we can help your business identify, protect and maximise the value of its intellectual property rights and assets.