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The ‘Gizeh’ is no longer protected due to Benelux regulations (that have since been repealed) under which – in short – copyrights expire after the expiry of the relevant design right.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.