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CLASS 99


The blog for design law, in Europe and worldwide. This weblog is written by a team of design experts and fans. To contribute, or join us, or for any other reason, email class99@marques.org.

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Who we all are...
Blog Administrator
David Musker
Henning Hartwig
Hidde Koenraad
Krystian Maciaszek
Peter Gustav Olson
MONDAY, 9 NOVEMBER 2026
Hague System: key outcomes from the 15th Working Group Meeting

At its 15th session in Geneva, the Hague Working Group discussed several potentially significant developments aimed at making the Hague System more flexible and user-friendly.

Key topics included the possible removal of the mono-class requirement, allowing designs from different Locarno classes in a single international application, as well as the introduction of designs per designation, which would enable applicants to tailor designs to the specific requirements of individual jurisdictions.

MARQUES strongly supported the latter initiative as a potentially significant improvement for applicants.

The Working Group also considered the modernisation of design representations, including higher-resolution 2D images and the possible future acceptance of 3D and video files, as well as a proposed new Rule 20bis to improve communications between national Offices and holders of international registrations.

Further discussions focused on the possible introduction of additional languages and the use of AI/large language models for translations, with a view to reducing translation costs and workload.

Most of these initiatives have not yet been finally adopted and will be further considered at the next session. If adopted, however, they could significantly increase the flexibility, accessibility and cost-effectiveness of the Hague System.

Oliver Nilgen and Inga George of the MARQUES Designs Team attended the meeting and have prepared this summary. For more information, please contact them.

Photo of WIPO headquarters (c) WIPO and licensed under Creative Commons

Posted by: Blog Administrator @ 09.42
Tags: Hague System, WIPO, Working Group,
Perm-A-Link: https://www.marques.org/blogs/class99?XID=BHA1050

THURSDAY, 5 NOVEMBER 2026
UK design reform proposals published

The UK government has published its response to the UK Intellectual Property Office’s (IPO) consultation on the designs framework.

Around 90 responses were received from a mix of stakeholders, including small and large designers and design-led businesses, as well as MARQUES.

The registration process

Speed, cost and simplicity

Respondents were clear that they value the speed, efficiency and low cost of the current registered designs regime and want these features retained. The government will legislate to give the registrar the power to conduct a search and examination of designs on the ground of novelty and individual character in some circumstances, but this will not be the default. Some clarity will be needed on what those circumstances will be.

Consistent with respondents' desire to keep the system simple, the government will not introduce opposition or observation periods, which it considers would overcomplicate the designs regime.

"The government has not ruled out a bad faith ground being introduced at some point, but says more work is needed to explore how it would operate, and what the criteria would be."

There was a recurring message from respondents that nothing should make the registration process slower or more expensive. But there was also evidence of anti-competitive behaviour, notably applicants registering designs using images of other people’s products.

The government has not ruled out a bad faith ground being introduced at some point, but says more work is needed to explore how it would operate, and what the criteria would be.

The statutory obligation to provide the DF21 designs search service will be removed, meaning that service is likely to end. (Our impression is that it was not widely used anyway and has been largely replaced by online search tools.)

Deferment of publication

Deferment is currently a matter of IPO practice rather than a legal obligation, and there was strong support for placing it on a statutory footing. Views on the period were evenly split between 18 months, which the IPO had proposed, and a longer period of 30 months.

Those favouring 30 months argued that it works better with global filing strategies, and the IPO has been persuaded by this argument: the 30-month deferment option (from the earliest of the priority date or the filing date) will be introduced.

Limited information about a deferred application would be published, including the name and address of the applicant, any representative details and the filing and priority dates.

Digital designs and new technologies

The definitions of ‘product’ and ‘design’ will be amended so that animations and transitions can be protected as registered designs. Technical solutions are needed to allow video file formats showing movement and animation, and 3D file formats.

These technical improvements will form part of the existing One IPO transformation programme. Once done, they should bring the UK into line with the recent changes in the EU.

Computer generated designs and AI

Should a design that has been completely created by AI be protected as a registered design? If the design was mostly AI, but a final stroke of a stylus was added by a human, does that lead to a different answer?

The IPO is going to undertake further work on this topic, ensuring any changes made are in tandem with the treatment in other IP rights, and reflect the developing nature of AI usage in the design industry.

Streamlining the designs system

A lot of the consultation was about fairly uncontroversial changes, such as removing the ability to file a physical specimen. These were largely waved through.

One that might be worth noting is that in the future only currently registered designs will be viewable online, and historical information about designs will be recorded in the Journal. There are also changes planned to the requirements around evidencing priority claims.

Unregistered design rights

"The government has decided, contrary to its earlier proposal, to retain both UK unregistered designs and the EU-inherited supplementary unregistered designs."

The government has decided, contrary to its earlier proposal, to retain both UK unregistered designs and the EU-inherited supplementary unregistered designs.

Although the government has withdrawn its proposal to remove UK unregistered design right, it still intends to simplify the rights including, as a minimum, harmonising qualification requirements and the term of protection.

Most respondents favoured a 10-year term, compared with the current three-year term for supplementary unregistered designs and 10-year term for design rights (of which the last five are subject to a licence of right).

The IPO feels that 10 years is a big increase in protection for supplementary unregistered design, and plans to conduct further analysis before a decision is made, including in relation to economic impact.

There has been some concern over where a disclosure must be made to qualify for supplementary unregistered design. It was previously anywhere in the EU or UK, but following Brexit that was narrowed to just the UK.

In one of the more dramatic changes, supplementary unregistered designs will be permitted following a disclosure anywhere in the world, provided that disclosure would come to the attention of those operating in the relevant sector in the UK. That is quite a change and very good news for design owners around the world who do business (and therefore need protection) in the UK.

The government has decided not to address the question of the overlap between designs and copyright, and leave the law to develop through case law. This is frustrating as it could take many years (if not decades) for designers to understand the extent to which copyright protects works of applied art.

Enforcement of designs

"The government is making changes in stages, and carefully, which has to be the right approach. That said, the designs reforms have been in the works for many years already, and uncertainty over too long a period is unhelpful for everyone."

It is likely that registered designs will be introduced to the small claims track of the Intellectual Property Enterprise Court, allowing improved access to justice for individuals and SMEs who cannot afford larger scale litigation.

There has been some lobbying for criminal sanctions to be introduced for unregistered design infringement. The government’s view is that the evidence simply isn’t there for such an introduction. As such, no new offences will be created and the issue has thankfully been put to bed.

What next?

Overall, the response represents a sensible and cautious approach to designs reform. That will not suit everybody – some have been calling for wholesale reform.

The government is making changes in stages, and carefully, which has to be the right approach. That said, the designs reforms have been in the works for many years already, and uncertainty over too long a period is unhelpful for everyone.

Hopefully the next stage will be progressed quickly and time will be found in the legislative timetable for the changes that require primary legislation to be enacted.

By John Coldham, Partner, Gowling WLG, London and member of the MARQUES Designs Team.

MARQUES submitted a response to the designs consultation, and the Designs Team continues to monitor developments. For more information, please visit the Team’s page on the MARQUES website or contact one of the Team members.

Posted by: Blog Administrator @ 08.15
Tags: UK, design reform, UK IPO,
Perm-A-Link: https://www.marques.org/blogs/class99?XID=BHA1049

FRIDAY, 30 OCTOBER 2026
Over 130 designs using new digital formats

More than 100 EU designs have been filed using video and 3D digital models since the implementation of phase II of the EU design legal reform on 1 July this year, according to EUIPO.

During the three months sine the reform, the Office received 25,591 EU design applications. These comprise 25,452 using traditional static images, 103 using videos, and 36 using 3D digital models as graphic representations.

Example design applications using videos as graphic representations, such as animations, video games and graphical user interfaces include: EUD 015153747-0001; EUD 015146672-0005; EUD 015154204-0001; EUD 015152934-0005; and EUD 015147078-0002.

Example design applications using 3D graphic representations, including representations of physical designs include: EUD 015146767-0001; EUD 015152532-0001 (pictured): EUD 015147194-0001; and EUD 015147524-0003.

EUIPO stated: “Early adoption patterns show that the new formats are helping applicants protect a wider range of designs. Video representations are being used to capture dynamic and digital design features that could not previously be represented effectively through static images. 3D digital models are enabling more accurate and comprehensive representations of physical products. Together, these new options are enhancing legal certainty, supporting innovation, and ensuring that the EU design system remains fit for an increasingly digital economy.”

Read more about the EU design reform in this Class 99 blog post.

Posted by: Blog Administrator @ 16.21
Tags: EU design, 3D, EUIPO, video,
Perm-A-Link: https://www.marques.org/blogs/class99?XID=BHA1048

TUESDAY, 6 OCTOBER 2026
2026 DesignEuropa Awards winners

The winners of the 2026 DesignEuropa Awards were announced at a ceremony in Ljubljana, Slovenia on 22 September.

The winners were:

  • Entrepreneurs and Small Companies Award: CLF Growth Containers (Latvia)
  • Industry Award: NOHRD StepTower (Germany)
  • Next Generation Award: Maria Gil (Poland)
  • Lifetime Achievement Award (previously announced): Philippe Starck (France)
  • Public Choice Award: Showee (Spain)

João Negrão, EUIPO – Executive Director, said in a statement: “Great design has the power to transform the way we live, work and experience the world around us. For ten years, the DesignEuropa Awards have celebrated the creativity and ambition of European design, from the next generation of design talent to world-famous creators such as Philippe Starck. By recognising and protecting these achievements, we help ensure that European design continues to innovate, create value and shape a more sustainable and competitive future.”

The next edition of the awards will take place in Prague, Czechia, in September 2027.

More details are on EUIPO’s website here.

Photo of award winners by EUIPO

Posted by: Blog Administrator @ 14.46
Tags: DesignEuropa, Ljubljana, EUIPO,
Perm-A-Link: https://www.marques.org/blogs/class99?XID=BHA1047

FRIDAY, 2 OCTOBER 2026
Recent trends in AI copyright cases in China

Ason Zhang and Ge Wang discuss copyright determination for AI-generated works, highlighting the practical value of creation-trail records and token quantification, viewed through recent judicial precedents in China.

Emerging judicial trends in generative AI copyright disputes

Technology has made the determination of copyright in AI-generated content (AIGC) one of the most closely watched frontier issues in IP law in recent years. Since 2024, Chinese courts have heard a series of copyright disputes involving AI text-to-image works and AI designs, and the underlying judicial reasoning has visibly shifted: from an initial focus on “whether the final generated result satisfies the elements of a work” toward a substantive examination of “the degree of human contribution throughout the entire creative process”.

The disputed work - Spring Breeze Brings Gentleness

The case “Spring Breeze Brings Gentleness” [Beijing Internet Court (2023) Jing 0491 Min Chu No 11279 Civil Judgment Li v Liu, Copyright Infringement Dispute, 2023-11-27] heard by the Beijing Internet Court, is the starting point in this area. In that case, the plaintiff completed an AI image creation through prompt design, parameter tuning, and multiple rounds of iteration; the court held that the plaintiff’s operations reflected intellectual investment and personalised choices, constituting a work protected under copyright law, with copyright vesting in the plaintiff. The “human originality/intellectual investment” standard established by this case has provided a basic point of reference for the adjudication of similar cases since.

But not all AI-generated content can obtain copyright protection. The “Phantom Wing Transparent Art Chair” case [Zhangjiagang People’s Court (2024) Su 0582 Min Chu No 9015 Civil Judgment], heard by the Zhangjiagang People’s Court, offers a contrasting reference point: the plaintiff claimed that an AI-generated design drawing for an art chair constituted a work, but because he could not provide original creative materials such as prompts or parameter-iteration records, the court held this insufficient to prove the plaintiff had made a creative contribution to the image, and ultimately dismissed the claim.

The plaintiff appealed to the Suzhou Intermediate People’s Court but failed to pay the appeal fee by the deadline. Therefore, the court issued a ruling treating the appeal as withdrawn, and the first-instance judgment became final [Suzhou Intermediate People’s Court, Jiangsu Province (2025) Su 05 Min Zhong No 4840 Civil Verdict Feng v Zhu et al, Copyright Infringement and Unfair Competition Dispute, 2025-04].

The plaintiff’s AI text-to-image work – Phantom Wing Transparent Art Chair
The chair manufactured by the defendant

The AI-designed plush toy case concluded by the Yangzhou Intermediate Court in 2026 [Yangzhou Intermediate People’s Court, Jiangsu Province. Second-Instance Civil Judgment, Wan v a Yangzhou Company, Copyright Ownership and Infringement Dispute, 2026] further clarified the boundary: the plaintiff had merely entered common descriptive keywords such as “cartoon snake”, “plush texture” and “3D” obtaining the image after multiple refresh-clicks; the court held that such conduct “could not exert strong constraint over the software’s output”, so the generated content could not reflect personalised choice or original contribution, and did not constitute a work.

Together, these cases sketch out the basic framework of current judicial adjudication: AI is merely a creative tool and lacks legal subject status; the key to determining originality lies in the degree of human control over the generative process; and the original record of the creative process is the core item of evidence, whose absence may directly lead to a losing outcome. In other words, “process review” is becoming the dominant method for adjudicating AI copyright cases.

The disputed work – cartoon snake toy

Notably, in August 2026 the Kaifu District People’s Court in Changsha, in the case of Ma v a Changsha kindergarten for infringement of the right of communication through information networks [Kaifu District People’s Court, Changsha, Hunan Province (2026) Xiang 0105 Min Chu No 8031 Civil Judgment. Ma v a Changsha Kindergarten, Infringement of the Right of Communication Through Information Networks, 2026-08 (the first-instance judgment had taken effect after the appeal period)], further refined “process review” into an operationalised, layered analytical approach.

The court divided the AI generation process into three layers – front-end conception, generation control, and back-end processing – examining the originality contribution at each layer separately to avoid conflating the assessments. This more refined method of review confirms the trend noted above – judicial practice is moving from a general inquiry into “whether there was human contribution” toward a more granular breakdown and verification of the entire creative process.

Creation-trail records and token quantification: the value and limits of two new analytical tools

Once “process review” became the consensus approach, a practical question followed: how does one prove the human contribution made during the creative process? Under the traditional adjudicative model, originality determinations rely heavily on the subjective judgment of the judge, and there is no objective yardstick for what counts as a “substantive contribution” or how to distinguish “tool use” from “creative direction”. Two tools that have emerged in practice in recent years offer a new way to address this problem.

The first is the creation-trail evidentiary system. As compliance systems on AI platforms have matured, mainstream generative platforms now retain complete records of user operations, including prompt version history, parameter-adjustment logs, the iterative generation process, records of selection and deletion, seed-value modifications, and other end-to-end metadata. These records can fully reconstruct the entire creative process and prove whether the user genuinely engaged in sustained, intellectually substantive conduct. In the “Phantom Wing Transparent Art Chair” case discussed above, the plaintiff lost precisely because he lacked this kind of original record. The court specifically noted that after-the-fact simulated operations cannot substitute for the original generative process, since the hardware/software environment, input prompts, and operational steps all lack identity and comparability with what actually occurred.

The second is the token-investment quantification mechanism. The token is the basic unit by which large models process information; a human’s prompt input, multiple rounds of iteration, and manual corrections during the creative process all consume a certain number of tokens. By calculating the proportion of human-attributable tokens out of the total tokens consumed across the entire generative chain, one can objectively reflect, from a data perspective, the volume, complexity, and depth of iteration in human informational input. Compared with purely subjective aesthetic judgment, the token-share ratio offers a standardisable, horizontally comparable quantitative indicator.

But neither tool can be directly equated with a finding of originality. Creation-trail records can only prove “what operations the user performed,” not that those operations were creative – a single “one-click generation” also leaves an operational record, yet plainly does not constitute creation. Token count, meanwhile, represents only the volume of investment, not the quality of the idea – a long, verbose, simple prompt is not necessarily superior to one precise, creative instruction. Both, therefore, are corroborating evidence rather than substitute standards for establishing rights.

A more sound approach is to combine the two tools: first use creation-trail records to determine whether the human genuinely directed the creative process and whether there was sustained intellectual investment, ruling out low-investment scenarios such as “simple refresh-and-pick”; then use the token-investment ratio to help assess the depth and volume of the human contribution, providing objective data support for the contribution-level assessment; and finally, the judge makes the substantive determination based on the originality of the expression in the final work.

Moving from “was there any operation at all” to “how much was invested” and then to “does it count as creation” forms a progressively layered adjudicative logic. This sequence mirrors the three-layer analysis applied by the Changsha Kaifu Court in the kindergarten case discussed in the first section, which examined front-end conception, generation control, and back-end processing separately: both refine, within the “process review” framework, the method for assessing the degree of human contribution.

Improving the rules

Alongside the rapid development of judicial practice, progress is also being made at the level of formal rules. In November 2025, the national standard GB/T 45654-2025, “Cybersecurity Technology – Basic Security Requirements for Generative Artificial Intelligence Services” [State Administration for Market Regulation, Standardization Administration of China. GB/T 45654-2025, “Cybersecurity Technology – Basic Security Requirements for Generative Artificial Intelligence Services,” effective 2025-11] formally took effect, laying out systematic provisions on corpus compliance, content labeling and complaint-and-reporting mechanisms, thereby strengthening copyright-compliance obligations at the input stage. The State Council’s 2026 legislative work plan proposes accelerating comprehensive legislation for the healthy development of artificial intelligence, with related research and drafting work now underway, which is expected to provide a more systematic legal response to AI copyright issues in the future.

On 7 September 2026, the China Supreme People’s Court, after in-depth research and extensive solicitation of opinions, formulated the “Supreme People’s Court’s Opinions on the Legal Trial of Artificial Intelligence-Related Disputes” [China Supreme People’s Court. Supreme People’s Court’s Opinions on the Legal Trial of Artificial Intelligence-Related Disputes, 2026-09-07] to address prominent issues in the adjudication of AI-related cases.

The “Opinions” establish three fundamental principles: upholding a people-centred approach, supporting innovation-driven development and reinforcing safety safeguards.

"Article 12 allocates liability among developers, service providers and users when AI-generated content infringes copyright."

Most relevant here is Article 12, in the IP section, which allocates liability among developers, service providers and users when AI-generated content infringes copyright: it lists the factors courts should weigh, requires developers who deny infringement to produce the sources of their training data and records of the training process, and holds users liable where, knowing or having reason to know of an earlier work, they generate substantially similar content without a valid defence. The “Opinions” do not, however, address whether AI-generated content can be protected by copyright, which leaves that question to the courts. These measures hold significant practical importance for standardizing legal application and adjudication in AI-related disputes, safeguarding public rights and interests, and fostering the healthy and orderly development of the AI industry.

Globally, the regulatory approach to AI copyright shows a diverse pattern. The United States has advanced incrementally through judicial precedent and Copyright Office administrative guidance: the series of policy documents issued by the Copyright Office in 2025 [United States Copyright Office. Copyright and Artificial Intelligence, Part 2: Copyrightability, 2025-01] clearly distinguished between “AI-assisted content” and “AI-generated content”, and in March 2026 the US Supreme Court denied certiorari in Thaler v Perlmutter, leaving in place the DC Circuit’s ruling that an AI-generated work with no human author involved cannot obtain copyright protection.

The EU, by contrast, has taken a different approach: the Artificial Intelligence Act passed in 2024 [Regulation (EU) 2024/1689 (Artificial Intelligence Act). Official Journal of the European Union, 2024] and the General-Purpose AI Code of Practice issued in 2025 have built a strict regulatory framework covering training-data transparency and copyright-holder opt-out mechanisms, among other measures. However, neither the AI Act nor the Code of Practice addresses whether AI outputs can be protected, and the EU has not legislated on that question yet. Despite their differing paths, all three jurisdictions are highly aligned on the fundamental position that “human creation is a prerequisite for copyright protection”.

Practical recommendations

"While creation-trail records and token quantification cannot substitute for the substantive determination of originality, they can effectively remedy the shortcomings of the traditional rights-determination approach – its high subjectivity, difficulty of proof and blurred boundaries – providing a more traceable, quantifiable and unified practical reference path for judicial adjudication."

For creators using AI tools, there are several practical recommendations worth noting for effectively protecting one’s own copyright under the current legal framework: first, keep a complete record of the creative process, including prompt versions, parameter settings, generation logs, intermediate drafts and final revision records, and where possible fix this evidence using methods such as blockchain notarisation or timestamping; second, increase substantive human creative investment, avoiding “one-click generation” style use, and instead making full, personalised modifications, selections and arrangements of the AI’s output; third, properly retain account records, operation logs, and payment receipts from the AI platform, as these may all serve as important evidentiary material.

Overall, the copyright dispute over AI-generated works is, at its core, a friction between traditional categorical legal rules and a new, digitised mode of creation. While creation-trail records and token quantification cannot substitute for the substantive determination of originality, they can effectively remedy the shortcomings of the traditional rights-determination approach – its high subjectivity, difficulty of proof and blurred boundaries – providing a more traceable, quantifiable and unified practical reference path for judicial adjudication. As the AI industry continues to develop and judicial experience continues to accumulate, a more systematic, scientific, and balanced AIGC copyright rule system is something worth looking forward to.

Ason Zhang and Ge Wang are members of Chispo Attorneys at Law in China. Ason Zhang is also a member of the MARQUES Copyright Team

Posted by: Blog Administrator @ 09.58
Tags: AI, copyright, China, ,
Perm-A-Link: https://www.marques.org/blogs/class99?XID=BHA1046

MONDAY, 28 SEPTEMBER 2026
Birkenstock successfully asserts copyright over (parts of) its sandals in Dutch court

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.

Posted by: Blog Administrator @ 15.07
Tags: Birkenstock, copyright, Lidl,
Perm-A-Link: https://www.marques.org/blogs/class99?XID=BHA1045

TUESDAY, 15 SEPTEMBER 2026
EUIPO podcast on Europe’s design stories

A new episode of the EUIPO podcast series Creative Sparks: From inspiration to innovation covers “Lessons from the Greats: Europe’s design stories”.

The podcast features Päivi Tahkokallio, designer, founder of Tahkokallio Design+ and long-standing member of the DesignEuropa Awards Jury, and Rosalía Cano, Action Manager of the DesignEuropa Awards at EUIPO.

It looks at how design transforms ideas into products, creates value for businesses and strengthens Europe’s creativity, innovation and competitiveness and highlights the importance of protecting design as a driver of economic and creative growth.

The speakers also discuss design as a key business asset and its role in IP strategy, particularly for entrepreneurs and SMEs.

The podcast episode comes ahead of the 10th anniversary of the DesignEuropa Awards, which will be marked on 22 September at a ceremony in Ljubljana.

It is available on Spotify here.

The picture is from the EUIPO website and shows the podcast participants.

Posted by: Blog Administrator @ 17.18
Tags: EUIPO, DesignEuropa, Creative Sparks, podcast,
Perm-A-Link: https://www.marques.org/blogs/class99?XID=BHA1044

MARQUES does not guarantee the accuracy of the information in this blog. The views are those of the individual contributors and do not necessarily reflect those of MARQUES. Seek professional advice before action on any information included here.


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