Germany’s Supreme Court has today ruled that the Birkenstock sandal is not a work of applied art and therefore does not qualify for copyright protection.

The German company behind the sandal had filed three lawsuits against companies it claimed had copied its sandal and infringed its copyright protection.

Copyright protects the “artistic” aspects of a product but not its functional elements. Traditionally, because clothing and footwear were functional as well as artistic, copyright law did not provide fashion designers the protection that artists, musicians and authors might enjoy. Birkenstock argued, unsuccessfully, that the sandals were, however, ‘works of applied art’ in the same way a painting or novel is.

The debate as to whether clothing and footwear is art is nothing new. Coco Chanel was adamant that fashion was not art. Her nemesis Schiaparelli, on the other hand, was a proponent of fashion as an art – not surprising for a designer who collaborated with Salvador Dali. In modern day debates, proponents will often refer to the work of Alexander McQueen or Vivienne Westwood, both of whom used their designs to express political and cultural viewpoints. It was surprising however, to see the latest iteration of the argument to play out over the functional and decidedly unglamorous Birkenstock sandal.

“Under copyright law it has been recognised for decades that outstanding designs of everyday objects can also be protected by copyright,” said Konstantin Wegner, a lawyer for the company.

Birkenstock, founded 250 years ago in the small German village of Langen-Bergheim went public back in October 2023 in what was widely regarded as an IPO flop. The stock immediately fell below its listing price once trading began and ended its first week of trading down 21%. The brand pointed to the rising problem of knock-offs as its biggest risk so it comes as little surprise that it is taking action against copycats. Late last year the company lost a lawsuit with Aldi in which it accused the discount retailer of breach design and competition law over a buckled sandal.

Birkenstock said in a statement that it “continues its fight against copycats with undiminished vigour” by exhausting “all legal means to defend itself against imitations”.