Birkenstock has a problem most brands would envy: its sandals are so recognizable that everyone copies them. The chunky cork footbed, the simple straps, the unmistakable silhouette — it's a design the company has made for decades, and one that cheaper rivals reproduce constantly.
So Birkenstock tried an unusual legal strategy. It went to court and argued that its sandals weren't just products. They were works of art — and therefore protected by copyright.
Why Claim "Art" at All?
This sounds strange until you understand what was at stake. Different forms of intellectual property protect different things, for different lengths of time:
Copyright protects original creative works — and lasts for decades after the creator's death. Design rights protect the appearance of a product — but expire after a limited term. Trademark protects what identifies the brand to consumers — and can last forever, but only if the feature is distinctive and non-functional. Birkenstock's design rights had run out. Copyright, if it applied, would last far longer. That's why it reached for "art."
The Court's Answer
In 2025, Germany's Federal Court of Justice ruled against Birkenstock. To qualify as a protected work of "applied art," it said, a design must show a sufficient degree of individual artistic creativity — it must be more than the result of technical or functional requirements. The sandals, however iconic, were judged to be primarily functional design, not artistic expression. No copyright.
It wasn't the first setback either. In the EU, attempts to protect the sandal's shape and sole pattern as trademarks have repeatedly run into the same wall: the features were found non-distinctive — they didn't function as a brand identifier in consumers' minds, they just looked like a sandal.
The Lesson: Pick the Right Tool
Birkenstock's saga is the clearest possible illustration of a principle that trips up countless businesses: the type of protection has to match the thing you're protecting.
Copyright is for creative works. Design rights are for appearances, but they expire. Trademark is for brand identifiers — and it can be permanent, but only if the feature is genuinely distinctive and not just functional. A product shape that is mostly about function is the hardest thing of all to protect, because no single regime is designed to hand one company a permanent monopoly on a useful form.
The brands that succeed in protecting a shape — Coca-Cola's bottle, Hermès' Birkin — do it by building genuine, provable distinctiveness over time, so the shape comes to mean the brand. Birkenstock has the fame. What the courts kept telling it was that fame and functional design aren't the same as a registrable, distinctive mark. The right strategy isn't to relabel a product as art. It's to make the design distinctive enough that it identifies you — and to protect it with the tool built for that job.
Frequently Asked Questions
Why did Birkenstock argue its sandals were art?
Because copyright protection for works of art lasts far longer than design rights, which had expired. If the sandals qualified as protected "applied art," Birkenstock could block copycats for decades longer. Germany's highest court rejected the argument in 2025, finding the design primarily functional rather than artistic.
What's the difference between copyright, design rights, and trademark?
Copyright protects original creative works and lasts decades. Design rights protect a product's appearance but expire after a limited term. Trademark protects features that identify the brand to consumers and can last indefinitely — but only if the feature is distinctive and non-functional.
Can you trademark the shape of a product?
Sometimes, but it's difficult. The shape must be non-functional and have acquired distinctiveness, meaning consumers recognize it as identifying one brand. Functional shapes — those dictated by how the product works — generally cannot be monopolized through trademark, which is why Birkenstock's sandal shape struggled.
Did Birkenstock have any trademark protection?
Birkenstock holds trademark rights in its brand name and logos, but its attempts to protect the sandal's shape and sole pattern as trademarks in the EU were often found non-distinctive. The name is protected; the functional design largely is not.