Evert van Gelderen of the MARQUES Copyright Team reports on a recent copyright case in the Netherlands, which found that certain Birkenstock sandals are copyright protected.

In proceedings between Birkenstock and retail chain Scapino, Birkenstock claimed copyright protection for its 'Madrid', 'Arizona', 'Florida', 'Boston' and 'Gizeh' models. It was mostly successful.

According to the District Court Midden Nederland, the 'Madrid', 'Arizona' and 'Florida' sandals are indeed eligible for copyright protection.

Scapino infringes the copyright on these models with its sandals from its own brands 'Bioslippers', 'Bio Life', 'Hush Puppies' and 'Thuis'.

Birkenstock cannot claim copyright protection of the ‘Boston’ and ‘Gizeh’ models. The ‘Boston’ sandal does not meet the work test, according to the Dutch Court.

The ‘Gizeh’ is no longer protected due to Benelux regulations (that have since been repealed) under which – in short – copyrights expire after the expiry of the relevant design right. Birkenstock’s appeal to the doctrine of slavish imitation also fails due to the lack of the required 'own identity on the market'.

An injunction against Scapino was granted, effective four weeks after the judgment is served, under threat of a penalty of up to €100,000. Furthermore, information about quantities must be provided and the damage must be determined in separate proceedings.

Finally, Scapino must pay remuneration for Birkenstock’s legal costs of just over €50,000.

Criteria for copyright protection of works of applied art

The Dutch court did not wait for the judgment of the European Court of Justice in Joined Cases Mio (C-580/23) and USM Haller (C-795/23). Referring to previous national case law and that of the CJEU, the court arrived at the following criteria for assessing whether works are protected by copyright (machine translation, footnotes removed):

3.13. The first question to be answered is whether the sandals pass the so-called work test and are works protected by copyright. According to the CJEU, only works that are original in the sense that they are the author's 'own intellectual creation' (OIC) are eligible for protection. That protection extends only to those elements that are actually the expression of such a creation. A work is original if it reflects the personality of the author and is the result of the author's free and creative choices.

3.14. Utility items may also be eligible for copyright protection if they are the creator's own intellectual creation and deserve such protection. This is the case, for example, if the creator of a product has expressed his creative ability in an original way by making free and creative choices and has designed the product in such a way that it reflects his personality. The fact that the design of a product is (partly) determined by technical or functional considerations does not necessarily preclude protection, as long as it does not prevent the creator from making free and creative choices and these choices reflect the creator's personality. Parts of an object that are characterised or determined solely by their technical function do not meet the originality criterion, because the various ways of implementing an idea are so limited that the idea coincides with its expression and it is then impossible for the creator to give expression to his creative spirit and achieve a result that constitutes his own intellectual creation. Finally, a collection or selection of elements that are not protected in themselves can, in combination, constitute an original work, provided that the collection or selection reflects the personality of the creator.

3.15. In the case of adaptations, if the copyright in an original work and in an adaptation thereof are held by the same person, the copyright holder may invoke both copyrights against an infringer. There is therefore no 'deduction' of one's own previous design.

Application of the test

The Court analyses Birkenstock's sandals and rules that three models are protected by copyright:

3.20. In the opinion of the court, the original character and creative choices of the designer of the Birkenstock sandals lie primarily in the combination of the following design elements:

1. The flat underside and a sole outline (also known as 'Umriss') with straight tapered side lines towards the front of the sandal;
2. The unlined side of the sandal, which leaves the cork visible;
3. The shape of the footbed with a recess at the heel, a raised area in the middle on the inside and a toe grip, which consists of a moulded edge at toe level in a kind of inverted square stitch;
4. The walls (upstanding edges) around the footbed, which slope downwards from back to front;
5. The (fastening) strap that runs along both sides of the sandal to the plastic sole and disappears between the footbed and the sole;
6. Insofar as the upper consists of multiple straps (Arizona/Florida), these straps (two or three) are cut from a single piece of leather, causing the straps to meet at the side and form a whole before the strap disappears between the footbed and the sole;
7. The fastening straps are not finished with visible stitching or other decorative elements.

​A more detailed discussion of the relevant elements can be found in paragraphs 3.21 to 3.27 of the judgment (machine translation available here).

Judgment of the Bundesgerichtshof in the Birkenstock case

The Dutch court reached a different conclusion to the German Federal Court of Justice, which issued a judgment on 20 February 2025 (Federal Court of Justice 20 February 2025, ECLI:DE:BGH:2025:200225UIZR16.24.0). The Federal Court of Justice ruled that two Birkenstock models (the ‘Madrid’ and ‘Arizona’) are not eligible for copyright protection.

The Dutch court paid little attention to this; it suffices to note that it has reached a different conclusion in this case.

What next?

Both Birkenstock or Scapino may appeal. This could be an interesting case, because in the meantime the CJEU will have ruled in the Joined Cases Mio (C-580/23) and USM Haller (C-795/23). The MARQUES Copyright Team will discuss the upcoming CJEU's judgment in this blog.

Evert van Gelderen is a partner at Clairfort Attorneys, the Netherlands, and a member of the MARQUES Copyright Team. Please contact him directly for further information. The illustrations are taken from the judgment published by the Court.

EUIPO has announced that applications are open for the 10^th edition of the DesignEuropa Awards, which will take place in Ljubljana, Slovenia in September 2026.

The application period runs from 10^th November 2025 to 20^th February 2026. There are four categories:

• Entrepreneurs and Small Companies Award
• Industry Award
• Next-Generation Design Award
• Lifetime Achievement Award

Anyone can nominate a designer for one of the awards. The rules of the Awards are available on EUIPO’s website here.

Full information, including eligibility, dates and links to make nominations, is available here.

Read about the 2025 winners of the DesignEuropa Awards on the Class 99 blog here.

Registration is open for the first MARQUES Design Symposium, which will take place in Frankfurt, Germany on 29th and 30th January 2026.

You can view the programme on the MARQUES website here and register here.

The Symposium, titled “Product Design – From Cradle to Eternity”, will include sessions on: designs and designers; proof of creation and ownership in a world driven by AI; the added value of design registration; the harmonization of unfair competition; and trade mark protection of product design.

There will also be workshops on strategic use of the different types of protection; multi-national design registrations; and online enforcement.

Speakers include designers, in-house counsel and lawyers specializing in design law from various jurisdictions.

Registration for the MARQUES Design Symposium includes lunch on both days, and an evening reception and dinner on 29th January.

Registration cost €750 (MARQUES members) or €890 (non-members). Accommodation at the Frankfurt Spin Tower Hotel can be booked as part of your registration at the special rate of €133 per night.

The Design Symposium will take place at the NH Collection Frankfurt Spin Tower (photo from the hotel website).

For more information, visit the dedicated page on the MARQUES website.

The winners of the DesignEuropa Awards 2025 were unveiled at a ceremony in Copenhagen on 23 September.

The winners were:

•             Entrepreneurs and Small Companies Award: Overade for its LIFE bike helmet. The French-designed helmet includes built-in lights and wireless features to improve safety and visibility for urban cyclists.

•             Industry Award: Ciarko Design, Poland’s largest manufacturer of premium kitchen hoods, for its Mono kitchen extractor hood. In awarding the prize, the jury considered the product’s combination of design, technology and environmental consciousness.

•             Next Generation Design Award: David Borovic, a young designer from Romania, whose projects include SYNTHESIS, a hybrid-electric bicycle demonstrating a focus on eco-friendly materials, ergonomics and functional design.

•             Lifetime Achievement Award: Dutch designer Hella Jongerius was recognised  for her contributions to textiles, furniture, and industrial design. Over her 30-year career, she advanced the use of material and colour, and her human-centred approach has influenced the industry’s understanding of design and environmental issues.

This was the sixth edition of the DesignEuropa Awards, which honour outstanding designs that are protected as registered EU designs and celebrate influential figures in the industry.

The winners were chosen by the DesignEuropa Awards jury from a diverse pool of finalists. More information is available on EUIPO’s website here.

MARQUES Treasurer Uwe Over (pictured with EUIPO Executive Director João Negrão) attended the ceremony. He said: “The EUIPO DesignEuropa Awards ceremony held at an iconic design place in Copenhagen showed again the commercial importance and IP relevance of creativity resulting into tangible designs to the benefit of society. It was impressive to see extraordinary design examples supported by the strong willingness to respect such effort by granting efficient protection by all legal means. It was also encouraging to see all stakeholders acting hand in hand; a very strong initiative driven by the Executive Director of the EUIPO.”

Photos provided by EUIPO

The DesignEuropa Awards Ceremony takes place in the Black Diamond library in Copenhagen today (23 September), starting at 11.30 am (CEST).

The ceremony will be streamed online and you can watch it here.

This is the sixth edition of the awards, which celebrate remarkable designs and their creators. Previous ceremonies have been held in Milan, Warsaw, Eindhoven, Berlin and Riga.

This year, awards will be presented in the following categories: entrepreneurs and small companies; industry; and next-generation design.

The Lifetime Achievement Award has already been announced and will be presented to Hella Jongerius, the Dutch designer renowned for blending craftsmanship with industrial design.

EUIPO has published more information about the awards here.

MARQUES will be represented at the ceremony in Copenhagen by Uwe Over, Treasurer.

Preparations are underway for the 2026 DesignEuropa Awards: the call for applications will open on the EUIPO website before the end of this year.

The UK Intellectual Property Office has launched a consultation on modernising the country’s design protection system and strengthening the UK’s position on designs.

The consultation runs from 4 September to 27 November 2025 and can be accessed here. Responses are welcomed from design professionals across all sectors, legal professionals and other stakeholders.

Proposals in the consultation include:

• Streamlining processes including harmonising time limits and procedures across different types of design protection, consolidating the complex patchwork of unregistered designs and providing clearer guidance to increase accessibility to designs. Formal deferment provisions are also being considered.
• Fighting misuse of designs: search and examination powers to identify and reject designs that lack novelty or individual character, particularly targeting anti-competitive filings, as well as bad faith divisions.
• Resolving post-Brexit complexities and, in particular, options to address the legal uncertainty around disclosure and the creation of Supplementary Unregistered Design Rights.
• Strengthening enforcement options by exploring the creation of a small claims court track within the Intellectual Property Enterprise Court specifically for design disputes and criminal sanctions for unregistered design infringement.
• Modernising for the digital age by allowing applicants to submit new file formats such as video clips and CAD files when applying for design protection and updating legal definitions to ensure future industries and technologies can benefit from design protection. The government is also considering whether they should maintain the existing protection for computer-generated designs without a human author (which includes AI).

Launching the consultation, IP Minister Feryal Clark MP said: “These reforms will help remove barriers and make it easier for designers of all shapes and sizes to protect their creations – cementing our position as one of the world’s leading destinations for design investment and innovation.”

The MARQUES Designs Team is reviewing the consultation and MARQUES may submit a response. To find out more, please contact Sally Britton or another member of the Designs Team.

WIPO is hosting several webinars on the Hague System, which Class 99 readers may be interested in.

They are on various dates and are in English, French or Spanish.

The details are (all times are Geneva time):

Ask Us: Live Q&A with Hague Experts (English): 13 August, 4pm-5pm

Master Secure Tools to Manage and Share your International Registration and Transaction Portfolio in English, 20 August, 4pm-5pm; in French, 27 August, 10am-11am; and in Spanish, 3 September, 4pm-5pm

Locarno Classification: What you Need to Know in English, 10 September, 4pm-5pm; and in Spanish, 17 September, 4pm-5pm

You can find out more about these webinars and register for free on WIPO’s website here.