Depending on whom you ask, Birkenstock’s wide-set, corky sandals might be frumpy, or chic, or gauche or the ultimate comfort shoe. What they cannot be called though, at least according to the German high court, is a work of art.
On Thursday, the federal court of justice in Karlsruhe, Germany, ruled that Birkenstocks were not “copyrighted works of applied art,” making it harder for the 251-year-old German shoemaker to combat the widespread sale of duplicates of its sandals across the internet.
“For copyright protection to apply, there must be such a degree of design that the product displays some individuality,” the court wrote in its decision. Birkenstock’s sandals may be iconic enough for a “Barbie” movie cameo, but they do not display enough individuality for the German judiciary.
The case has been winding its way through the court system for years, as Birkenstock sought to copyright four of its orthopedic-rooted slip-ons: the Madrid, Arizona, Boston and Gizeh, which have inspired cheaper imitations.
“The decisions by the BGH constitute a missed opportunity for copyright protection in Germany,” Jochen Gutzy, Birkenstock’s chief communications officer, wrote in a statement, using the German acronym for the court. In spite of the ruling, he continued, the company would “continue to take tough action against copycats who think they can make money from other people’s creative ideas and inventions.”
In legal filings, Birkenstock singled out the German retailers Tchibo and Shoe.com, as well as the Danish company Bestseller, as purveyors of Birkenstock look-alikes. Yet the network of copycat clogs is vast. On Amazon, shoppers can find convincing dupes of the brand’s two-strap Arizona model and potato-shaped closed-toe Boston clogs. These shoes — clones to the naked eye — sell for as low as $22, far less than $135, the cost of a pair of suede Arizona Birkenstocks.
At the heart of the ruling, according to legal experts, was the initial spark that led to the formation of Birkenstock’s easy-on-the-arches shoes.
“In this case, the court found that while Birkenstock’s sandals are undeniably iconic, their design is largely driven by ergonomic and orthopedic needs, not creative expression,” said Jared Goldstein, a lawyer and expert in footwear legal entanglements who coauthored the book “Sneaker Law.”
To be sure, Birkenstock has never shied away from its podiatric roots. Its website recounts how when Birkenstock introduced the single-strapped “Original Birkenstock-Footbed Sandal” (later renamed the Madrid and still in the brand’s product line) in the 1960s, Karl Birkenstock “made doctors his partners in spreading the word about the shoe.”
Today, the company’s public image has evolved past its orthopedic origins. Over the last decade in particular, its sandals and clogs, once associated with patchouli-drenched hippies, have been recast as fetching objects of desire. Fashion houses like Valentino, Jil Sander and Dior have paired with the German cobbler, resulting in high-price collaborative designs.
Along the way, the brand has rocketed from a family-run enterprise to a publicly listed corporation. In 2021, L Catterton, a private equity group with ties to the French luxury magnate Bernard Arnault, became the majority owner of Birkenstock. Two years later, Birkenstock went public on the New York Stock Exchange, raising $1.48 billion in its initial public offering.
Legal experts say the case will have implications not just for Birkenstock but for the German footwear market overall.
Matthias Wurm, the head of corporate law at the German firm Schlun & Elseven, who was not involved in the case, said the ruling “opened the floodgate for imitators,” who now have legal cover to pump out their own cork-and-latex footbed shoes.
“The federal court’s ruling has the tragic result that Birkenstock sandals can be imitated by copycats on German soil,” Dr. Wurm said. “Birkenstock is likely to face a lot of competition in the future.”
