On 20 February 2025, the German Federal Supreme Court (BGH) rejected Birkenstock's claim that its “Madrid” and “Arizona” sandal styles should qualify for copyright protection as “artistic works”. 

The BGH emphasised that artistic works must constitute the author's own intellectual creation, meaning the subject matter must be original and reflect the personality of the author through their free and creative choices. To avoid setting the copyright protection threshold too low, the BGH ruled that purely technical or functional creations cannot enjoy protection. 

Applying these principles to Birkenstock's sandals, the BGH found that any creative contributions to the designs were too minimal to meet the necessary level of artistic originality. 

National courts across the EU interpret and apply principles established by the CJEU, and the BGH appears to have raised the bar for copyright qualification requirements. This decision departs from the CJEU's 2019 ruling in Cofemel (C-683/17), which reinforced originality as the sole requirement for a design to qualify for copyright protection. The BGH recognised a distinction between artistic and functional elements of a design. 

Similarly, in November 2024, the UK High Court ruled in the WaterRower case, determining that while the WaterRower design had aesthetic appeal, it was insufficiently artistic to qualify for copyright protection under UK law. The High Court found that the design was more commercially driven than artistically motivated.

Ultimately, reconciling the copyright positions adopted by the EU and national courts (particularly in the UK post-Brexit) remains challenging. Designers operating in both jurisdictions should consider the newly-recognised distinctions between artistic elements of a design and those that are purely functional, technical or commercial when determining their intellectual property strategy.