Sandals In Court ' The Birkenstock Case And IP Strategy For Functional Objects

• Published date: 09 February 2026
• Subject Matter: Intellectual Property, Copyright, Trademark
• Law Firm: SANDS Advokatfirma
• Author: Hilde Toresdatter Tangen, Robin Alexander Kunze and Katrine Malmer-H'vik

The copyright year 2025 has been marked by many exciting cases, both here in Norway and in the EU. One of these cases concerned whether the sandals from the German Birkenstock Group ('Birkenstock') are protected by copyright as applied art. Copyright protection of applied art has been controversial for a long time, and it seems unlikely that the final word has been said. Birkenstock's lawsuit is also an example of a (quite aggressive) IPR strategy, which can serve as inspiration for other businesses experiencing challenges with product imitation and increased global competition.

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...