Article written by Landine Varela, Arque Advocaten.
BIRKENSTOCK v. SCAPINO: Dutch court recognizes copyright in iconic sandals
Article written by Landine Varela, Arque Advocaten.
The German company Birkenstock is widely known to the public for its sandals and has frequently been involved in litigation to protect its designs. On 12 November 2025, the District Court of Midden-Nederland (the Netherlands) held that Dutch shoe store chain Scapino infringed Birkenstock’s copyright in three well-known sandal models (ECLI:NL:RBMNE:2025:5837). The judgment was rendered shortly before the Mio/Konektra ruling of the CJEU, but probably would have turned out the same way if it had been rendered after – at least, in the opinion of the authors of this article.
Facts
Birkenstock initiated proceedings against Scapino, alleging that the sale of certain sandals (the models Madrid, Arizona, Florida, Boston, and Gizeh) infringed Birkenstock’s copyright. Birkenstock sought, inter alia, an injunction, disclosure of sales data, and damages.
Scapino contested the claim that the sandals constituted copyright protected works. According to Scapino, the overall appearance of the sandals was largely determined by functional and technical considerations. In addition, Scapino invoked forfeiture of rights, referring to prior correspondence and Birkenstock’s enforcement practices.
Copyright protection?
The Court first assessed whether the sandals were eligible for copyright protection. Referring to established Dutch and EU case law, it reiterated that only works that are original in the sense of being the author’s “own intellectual creation” are protected. That the design of a product may be partly dictated by technical or functional requirements does not preclude protection, provided that the author was free to make creative choices reflecting his or her personality.
On that basis, the Court held that the Madrid, Arizona, and Florida models were copyright-protected. The Court found that in designing these sandals, creative choices had been made, including the contouring at the heel and midsole, the specific shape of the toe grip, the decision to leave the sides of the sandals unlined to expose the cork footbed, and the method of attaching the upper to the lower part of the sandal.
The Court explicitly noted that it was aware of the decision of the German Bundesgerichtshof of 20 February 2025, in which two of these Birkenstock models were held not to enjoy copyright protection, but that it had reached a different conclusion in this case.
Protection was denied for two models. The Boston model did not meet the originality threshold, as prior art shows that a clog with a similar upper already existed in 1971. Copyright on the Gizeh model had lapsed under the applicable law at that time because the Benelux design registration from 1983 expired after fifteen years and a maintenance declaration was not filed on time.