Evert van Gelderen of the MARQUES Copyright Team reports (once again) on a recent copyright case in the Netherlands about the Birkenstock sandals, in which it was ruled that certain parts of these sandals are protected by copyright.

Once again, a Dutch court has granted copyright protection to Birkenstock sandals. However, this relates solely to the lower part of all the sandals and one element of the upper of one specific sandal from the Madrid model.

These proceedings were brought between Birkenstock on the one hand and Lidl and R&N (Rieg & Niedermayer) on the other.

In its verdict of 23 September 2026, the Gelderland District Court upheld a claim for infringement limited to the aforementioned elements and restricted to the territory of the Netherlands. Lidl and R&N were also ordered to provide information regarding the infringement and pay damages and Birkenstock’s legal costs.

The damages will have to be determined in separate damages proceedings.

A machine translation of the verdict can be found here.

Previous proceedings in Germany and the Netherlands

At the beginning of its judgment, the Gelderland District Court noted that various Birkenstock sandals had been the subject of legal proceedings.

For example, the German Bundesgerichtshof handed down a judgment on 20 February 2025 (ECLI:DE:BGH:2025:200225UIZR16.24.0). The Midden-Nederland District Court delivered a judgment in proceedings on the merits at first instance on 12 November 2025 (ECLI:NL:RBMNE:2025:5837). The subject of these proceedings has consistently been whether those sandals as a whole, or parts thereof, are protected by copyright. An earlier post on the MARQUES Class 99 blog discusses these judgments.

The earlier judgements predate the Mio & Konektra judgment of the Court of Justice of the European Union (CJEU) dated 4 December 2025 (Joined Cases C-580/23 (Swedish case, Mio AB v Asplund) and C-795/23 (German case, USM Haller v konektra GmbH).

The Mio & Konektra judgment was also discussed in a Class 99 blog post.

Judgment of the District Court of Gelderland

Facts

The proceedings between Birkenstock and Lidl/R&N concern five pairs of sandals offered by Lidl on the Dutch market, at the very least. The women’s sandals are marketed under the ESMARA and NATURAL WALK BY ESMARA brands, and the men’s sandals are marketed under the LIVERGY and NATURAL WALK BY LIVERGY brands.

R&N is listed as the manufacturer on the labels attached to two of the ESMARA-branded sandals at issue.

The sandals sold by Lidl are pictured right.

Are the Birkenstock sandals protected by copyright?

In its judgment, the court explicitly refers to the Mio & Konektra judgment. The judgment of the Dutch court was stayed pending this ruling, and the parties were given the opportunity to comment on its content.

The court first sets out the framework for assessment copyright protection, referring to previous case law (see margin numbers 6.10 to 6.13 of the judgment). The court then assesses the five pairs of Birkenstock sandals that form the core of Birkenstock’s claims (see margin numbers 6.14 to 6.50 of the judgment).

Birkenstock has argued that both the lower part and the five distinct upper parts (the so-called ‘uppers’) are protected by copyright.

Footbed: copyright protection. The lower part of every Birkenstock sandal, the footbed, is identical. The court assessed the various elements put forward by Birkenstock (see paragraphs 6.17 to 6.24). The court concluded that only one element of the lower part of Birkenstock’s sandals enjoys copyright protection.

This concerns the difference in height used, which creates a ‘wall’ at the back that slopes downwards towards the front. The other elements of the lower part cited by Birkenstock do not qualify for copyright protection.

Upper: protection applies only regarding an element of the ‘Madrid’ model. As mentioned, Birkenstock’s sandals are distinguished from one another by their uppers.

The court ruled that (only) one element of the upper of one specific sandal is protected by copyright. This concerns the way in which the narrower strap, approximately two centimetres wide, runs across a wider strap, of approximately five centimetres, in the upper of the Madrid model (see margin numbers 6.25 to 6.30).

The uppers of the other models (Arizona, Florida, Boston and Gizeh) are not considered to be protected by copyright (see margin numbers 6.31 to 6.50).

Is there copyright infringement?

After citing the infringement test set out in Mio & Konektra, the court concluded that Lidl and R&N are infringing the copyright held by Birkenstock (see margin numbers 6.51 to 6.56).

The footbed constitutes an infringement. This is because the footbed in all of Lidl’s and R&N’s sandals infringes the copyright. Although the lower part of Lidl’s sandals as a whole is somewhat flatter compared to the lower part used in Birkenstock’s sandals, the court found that, proportionally, it exhibits a similar profile. That profile is characterised by a higher rear section that slopes down with a clearly visible curve towards a flatter front section.

The court found that there has been a recognisable reproduction of the copyright-protected ‘wall’ of the sole.

A Birkenstock sandal is shown on the left and those from Lidl and R&N on the right.

The upper of one sandal constitutes an infringement. Furthermore, one sandal from Lidl infringes the upper of Birkenstock’s Madrid model.

The court found that, contrary to Lidl’s arguments, there has been a recognisable reproduction. Reference is made to the photographs below, which were taken by the court clerk. The photo on the left shows the Birkenstock Madrid model, and the photo on the right shows the similar sandal from Lidl and R&N.

No claim for slavish imitation

Birkenstock also invoked the legal doctrine of slavish imitation (see margin numbers 6.59 to 6.62 for an explanation of this doctrine under Dutch law). The court assessed this ground in relation to the Arizona, Florida, Boston and Gizeh models.

For a successful claim under this doctrine, it is required, amongst other things, that there must be an ‘own place in the market’. According to the court, this condition was not sufficiently met in the case of these models (see margin numbers 6.63 to 6.67).

The court also considered that Birkenstock has, in fact, allowed a wide variety of comparable sandals to enter the market, which have also managed to establish themselves. This has given rise to a rich design heritage, as a result of which any distinctive character has already been diluted.

This legal basis therefore failed.

To be continued?

The proceedings concerning the Birkenstock sandals do not appear to be over yet. The damages still need to be determined in separate proceedings. Furthermore, an appeal has been lodged against the earlier judgment of the Midden-Nederland District Court, as can be read on Birkenstock’s website.

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 Dutch court.