Can sandals be art? Birkenstock says yes, but a German court says no

A Birkenstock sandal is pictured in a Birkenstock store in Frankfurt, Germany, Oct. 4, 2023. (AP Photo/Michael Probst, File)

BERLIN — Birkenstocks: they are ubiquitous in the summer, comfy and very German, come in many colors and shapes, look sometimes chic and sometimes shabby. But can these sandals be considered art?

That’s what Germany’s Federal Court of Justice had to decide on Thursday, and it ruled they’re just comfy footwear.

Birkenstock, which is headquartered in Linz am Rhein in western Germany and says its tradition of shoemaking goes back to 1774, had filed a lawsuit against three competitors who sold sandals that were very similar to its own.

The shoe manufacturer claimed its sandals “are copyright-protected works of applied art” that may not simply be imitated. Under German law, works of art enjoy stronger and longer-last intellectual property protections than ordinary consumer products.

The company asked for an injunction to stop its competitors from making copycat sandals and order them to recall and destroy those already on the market The defendant companies were not identified in the court statement.

Before Germany’s highest court for civil trials weighed in this Thursday, the case had been heard at two lower courts, which disagreed on the issue.

A regional court in Cologne initially recognized the shoe models as works of applied art and granted the orders, Cologne’s higher regional court later overturned the orders on appeal, German news agency dpa reported.

The appeals court said it was unable to establish any artistic achievement in the wide-strapped sandals with the big buckle.

On Thursday, the Federal Court of Justice sided with Cologne’s higher regional court and dismissed the case. In its ruling, it wrote that a product can’t be copyrighted if “technical requirements, rules or other constraints determine the design.”

So when it comes to Birkenstock’s sandals, functionality and craft trumps art — at least in the eyes of the law.

“For the copyright protection of a work of applied art — as for all other types of work — the level of design must not be too low,” the court wrote. “Purely technical creation using formal design elements is not eligible for copyright protection. Rather, for copyright protection, a level of design must be achieved that reveals individuality.”

Kirsten Grieshaber, The Associated Press