[The IPKat] [Guest post] The Birkenstock saga continues: Dutch court acknowledges copyright protection in sandal designs

[Eleonora Rosati]

[Guest post] The Birkenstock saga continues: Dutch court acknowledges copyright protection in sandal designs

 Eleonora Rosati Sunday, November 23, 2025 - Birkenstock, Brompton Bycicle, Cofemel, copyright, Guest post, infringement, Mio/konektra, Netherlands, originality, Spyros Sipetas, works of applied art

The IPKat has received and is pleased to host the following analysis by Katfriend Spyros Sipetas (Stockholm University) of a recent Dutch first instance decision, which – contrary to the earlier take of the German Federal Court of Justice [IPKat here] – has acknowledged copyright protection in five models of Birkenstock sandals. Here’s what Spyros writes:

The Birkenstock saga continues: Dutch court acknowledges copyright protection in sandal designs

by Spyros Sipetas

Kat in (non-copyright protected)  Boston-style clog

Six years after the landmark judgment in Cofemel [IPKat here], and only weeks before the Court of Justice of the European Union (CJEU) delivers what is expected to be another key ruling on works of applied art in Mio/konektra [IPKat here], the District Court of Central Netherlands has issued a decision (an English translation is available here) that brings renewed hope for the copyright protection of fashion objects, whilst also revealing how fragmented the legal landscape for this category of works remains across the European Union (EU).

As AG Szpunar stated in his Opinion in Mio/konektra, classification as copyright works should “[…] be harmonised within the internal market so that the eligibility for protection of the ‘Birkin’ bag and that of Birkenstock sandals are assessed on the basis of the same criteria in every Member State.”

What happens, then, when the Birkenstock sandals themselves receive different treatment in different Member States?

This question has come to the forefront once more when a Dutch first instance court seemingly departed from the approach recently taken by the German Federal Court of Justice in quite an unapologetic manner.

In the words of the judgment itself: ‘'The court is aware that on 20 February 2025, the German Bundesgerichtshof (Federal Court of Justice) issued a ruling with a different outcome, namely that two Birkenstock models are not protected by copyright. The court has reached a different conclusion in this case.’’ (Para 3.29).

The Dutch judgment

Turning to the substance of the Dutch ruling, the case concerned five Birkenstock models – Madrid, Arizona, Florida, Boston, and Gizeh – and Scapino’s competing sandals. Birkenstock asserted copyright in all five models, claiming that 29 of Scapino’s sandals were infringing and, subsidiarily, alleging slavish imitation according to Dutch law.

The court proceeded model by model, leading to a split decision: it held that three designs – Madrid, Arizona, and Florida – are protected by copyright and that 13 of Scapino’s sandals (one corresponding to the Madrid, eleven to the Arizona, and one to the Florida) amount to an infringement of those rights. Birkenstock’s subsidiary slavish imitation claim was dismissed, because it failed to demonstrate that either the Boston or the Gizeh still had a distinct market identity capable of generating confusion at the time Scapino’s sandals were launched.

Copyright protection

In determining the protectability of five Birkenstock models under copyright, the court began by reiterating the authoritative CJEU case law on the matter (para 3.13). More specifically, it recalled that, according to Infopaq, only elements that constitute the author’s own intellectual creation are protected (paras 37,39). A work reflects such creation if it is the result of free and creative choices and expresses the author’s personality (Painer, paras 92,94).

Subsequently, it reaffirmed that, as regards utilitarian objects specifically (para 3.14), they may be protected considering that these choices exist – referring expressly to Cofemel (paras 50-52). Functional constraints do not preclude copyright protection unless they eliminate artistic freedom (Brompton Bicycle). Conversely, where an element is dictated solely by function, leaving no room for (creative) choices, idea and expression merge and thus copyright cannot subsist (BSA, paras 48-50).

Through its own subjection of the Birkenstock models to these criteria (paras 3.16 ff), the court concluded that Madrid, Arizona, and Florida are original works. Their protectability lies in the combination of expressive design elements identified in para 3.20 of the judgment – including the flat underside and straight ‘Umriss’, the exposed cork sides, the anatomically shaped footbed, the wavy sloping walls, the visible method of attaching the straps between the footbed and the sole, and, for the multi-strap models, the fact that the straps are cut from a single piece of leather.

The court’s reasoning also follows the principle(s) set in Cofemel and Brompton Bicycle: while the sandals serve a functional purpose, the designer was not constrained to a single solution. Per the court, a ‘wide variety of footprints’ offered divergent ways to achieve the same functional goal, evidencing freedom of choice – supported by the enlightening statement: ‘a footprint is not yet a shoe’ (para 3.21).

By contrast, the court denied protection to the Boston model, finding that the defining upper part already appeared in the pre-1977 design corpus, leaving only functional or insufficiently original features (para 3.30). As for the Gizeh, the court accepted Scapino’s defence that its copyright had expired under the former Uniform Benelux Law on Designs due to the absence of a maintenance declaration.

Copyright infringement

Having established the protectability of the three models, the court turned to the infringement assessment in paragraph 3.36 by setting out the test it intended to apply:

[…] the court will assess for each model the extent to which the overall impression of the sandals offered by Scapino corresponds to the combination of distinctive elements of the Birkenstock sandals referred to in 3.20

Doctrinally, this formulation is intriguing.

On the one hand, the underlying approach corresponds to the infringement test developed by the CJEU in Infopaq – under which, infringement occurs whenever the act concerns elements expressing the author’s own intellectual creation (paras 37 and 39) – that is, original elements of the work. Therefore, it appears orthodox for the court to identify the design elements that reflect the designer’s free and creative choices in order to examine whether Scapino reproduced those same creative elements, taken individually or in combination.

On the other hand, the court relied on the concept of ‘overall impression’ – borrowed by design law and largely alien to the copyright system. This issue is also at the heart of Mio/konektra (third question), where, as AG Szpunar observed, it ‘[…] should not even be raised by the court. In copyright law, what distinguishes two works is not the overall impression but the details that uniquely personalize them’ (Opinion, para 67).

Nevertheless, despite adopting design-law terminology, the Dutch court ultimately applied what appears to be a copyright-based analysis, focusing on whether the original elements identified in paragraph 3.20 reappeared in the disputed Scapino models.

In practice, this led to the conclusion that 13 of the Scapino sandals amounted to infringement, as they incorporated nearly all the protected design elements identified in paragraph 3.20 – with any differences deemed immaterial.

Ongoing debate

Beyond the contrast with the German judgment, the Dutch decision has already prompted a series of reactions. One recurring issue concerns the scope of the resulting injunction. Dutch courts routinely grant EU-wide relief on the basis that copyright law has been harmonised, yet the present case highlights the fragility of that assumption: two Member States, applying purportedly the same CJEU framework, reached opposite conclusions on the very same models.

Commentators have also diverged in their perception of the originality reasoning. Several found that the Dutch court offered a detailed account of the designer’s creative choices; others remained unconvinced by the absence of a more explicit demonstration of why the elaborately listed design choices would ‘reflect the personality of the author’.

A further point of discussion relates to terminology. Unlike the German court, the Dutch court avoided the use of pre-harmonisation concepts. While arguably the German court’s legacy terminology was ultimately read through an EU law lens (as discussed here), perhaps this traditional vocabulary also led to its stricter approach. Nevertheless, even under a harmonised standard, divergent factual assessments can legitimately produce divergent results.

Concluding remarks

All this said, much of the controversy surrounding the Dutch judgment can perhaps be explained not only by its notable deviation from the recent German decision but also by its timing: it was issued only weeks before the CJEU ruling in Mio/konektra. As a reminder, the German decision itself was delivered just months before the AG Opinion, raising similar ‘suspicions’ that the national court might have sought to position its conclusions before the CJEU set out further guidance. It is also worth re-emphasising that the Dutch ruling is a first instance decision. Its authority is therefore limited (and certainly not definitive), especially given that an appeal is likely to follow – and, importantly, will be decided within a post-Mio/konektra copyright framework.

If the CJEU follows AG Szpunar’s Opinion, then the Dutch court’s emphasis on the final object and its design elements, rather than the creative process, appears broadly consistent with that approach (at least in principle), with the notable exception of the AG’s proposed (and criticized) recognisability-based infringement test [IPKat here].

Taken together, the Dutch judgment encapsulates both the opportunities and the uncertainties surrounding the protection of fashion designs under EU copyright law. It signals a relatively generous approach to the copyright protection of utilitarian objects, while also highlighting how much room for judicial discretion remains. With Mio/konektra imminent, it is precisely this discrepancy – between formally harmonised criteria and the divergent outcomes they can still produce in practice – that the forthcoming CJEU ruling may help to narrow.

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