Abstract
Can Birkenstock sandals be protected by copyright? In a judgment delivered on 23 September 2026, the District Court of Gelderland in the Netherlands recognised copyright protection for certain creative elements of Birkenstock’s designs, finding that these had been reproduced in products sold by Lidl. The ruling explains why similarities between two products are not, in themselves, sufficient to establish whether an imitation constitutes an infringement.
Birkenstock v. Lidl: the Dutch court's decision
Drawing on the design of a well-known product is common practice in the fashion industry. But where does legitimate inspiration end and copyright infringement begin? The District Court of Gelderland in the Netherlands addressed this question in a dispute between Birkenstock and several companies involved in selling sandals similar to those made by the German brand.
The dispute concerned five of Birkenstock’s best-known sandal models – Arizona, Madrid, Gizeh, Florida and Boston – and similar products sold by Lidl. Birkenstock argued that, without authorisation, those products reproduced creative features of its sandals. The court therefore had to determine which elements of the sandals were actually protected and whether those elements had been copied in the products at issue.
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Judgment C/05/441458 / HA ZA 24-484
The outcome was favourable to Birkenstock, but only in part. The court recognised copyright protection for a specific feature of the lower section’s side profile, shared by all five models, and for a particular feature of the Madrid model’s upper strap. It did not, however, find that every component of the sandals was protected, or that the anatomical shape of the footbed was protected in itself.
Lidl Nederland and the manufacturer and importer Rieg & Niedermayer were ordered to cease the infringing activities in the Netherlands, subject to a penalty of €5,000 for each day of non-compliance, up to a maximum of €250,000. The court also ordered the defendants to provide an accounting and recognised Birkenstock’s right to damages, to be assessed in subsequent proceedings.
Can a sandal be protected by copyright?
The central issue in the dispute was not Birkenstock’s reputation, but the originality of the sandals’ individual features. A product’s commercial success does not automatically mean that its shape qualifies as a copyright-protected work.
A sandal must, first and foremost, support the foot, allow the wearer to walk and provide stability. Its shape is therefore partly determined by technical and ergonomic requirements. However, this does not rule out the possibility that certain details reflect the designer’s free and creative choices.
The legal test stems from Articles 2, 3 and 4 of Directive 2001/29/EC, as interpreted by the Court of Justice of the European Union in its judgment of 4 December 2025 in Joined Cases C-580/23 and C-795/23 (Mio and Konektra). A design object may qualify for copyright protection if it constitutes its author’s own intellectual creation, reflecting the author’s personality through free and creative choices.
As explained in the article ‘The EU Court of Justice Revisits Authorial “Creativity” in Design’, works of applied art are not subject to a higher threshold of originality. Nor are aesthetic appeal, reputation or the mere possibility of choosing between different shapes enough. It must be possible to identify a genuinely creative choice in the product’s actual design, rather than a feature dictated by function or other constraints.
Applying this test, the Dutch court ruled out separate copyright protection for various features of Birkenstock’s footbed. The heel cup, arch support and raised area beneath the toes are directly linked to the shape of the foot and the need for comfort. The decision to leave the cork visible or to use several layers of material was also considered insufficiently creative. The court reached a different conclusion, however, regarding the side profile of the sandal’s lower section. The court considered the distinctive change in height to be original: it creates a wall-like edge at the rear and slopes down in a wave-like pattern towards the toe. According to the court, this particular aesthetic feature is not dictated by the anatomical function of the footbed. Rather, it is the result of a free and creative choice and can therefore qualify for copyright protection.
For the Madrid model, protection was also granted to the arrangement of a narrower strap, approximately two centimetres wide, overlapping a wider strap of around five centimetres. By contrast, the upper sections of the Arizona, Florida, Boston and Gizeh models did not satisfy the originality requirement. In the aspects examined, they were considered functional, commonplace or merely stylistic.
The court then found that Lidl’s sandals recognisably reproduced the protected side profile and, in the case of the Madrid model, the configuration of the straps. The fact that Lidl’s products differed in certain dimensions or proportions was not considered sufficient to rule out infringement.
When does a lookalike become an infringement?
The ruling distinguishes between two questions that are often confused: does one product look like another? And does it reproduce the other’s protected creative elements? Only the second question is decisive when determining whether copyright infringement has occurred. Two sandals may share an anatomical shape, a buckle or a minimalist style without every similarity amounting to infringement.
As the Court of Justice indicated in Mio and Konektra, the assessment of copyright infringement cannot be confined to the overall visual impression, which is relevant under design law. Instead, the question is whether the work’s original elements have been reproduced in a recognisable way. Even a single detail may matter, provided it is genuinely creative.
The case therefore shows that copyright protection can exist alongside protection for designs, but the two are not the same. As also highlighted in discussions about artistic value in design, choosing the appropriate form of protection requires a distinction between originality for copyright purposes and the novelty and individual character required under design law.
Birkenstock’s success on copyright grounds was not matched by a similar finding of unfair competition. According to the case law cited by the court, imitating a product that is not protected by an exclusive right is, in principle, lawful. It may become unlawful where the imitation creates an avoidable risk of confusion and the original product has a distinctive appearance in the relevant market.
The evidence did not adequately establish the distinctiveness of the upper sections of the Arizona, Florida, Boston and Gizeh models at the relevant times, particularly in 2018 and 2025. The court also took into account the fact that numerous similar sandals had been available on the Dutch market for years. It observed that Birkenstock’s efforts to challenge those imitations had not prevented them from becoming established in the market. The brand’s reputation and high sales volumes were not, on their own, enough to make up for the lack of evidence.
For fashion companies and designers, the Birkenstock case confirms the importance of precisely identifying original features, explaining how they express creative choices and documenting how they originated. At the same time, claims of slavish imitation require separate evidence. It is not enough to show that a brand is well known: it is also necessary to explain how the product’s shape differs from alternatives available on the market and what risk of confusion the copy creates.
Those who design or market products inspired by existing models should, in turn, examine not only the overall appearance but, above all, whether they are reproducing creative features that may be protected. The Birkenstock case demonstrates that a functional shape may remain free for others to use, while a seemingly minor detail may be protected. The assessment depends on the specific features of the product, the products already present on the market and the available evidence.
Reviewed by: Margherita Manca
Publication date: 28 October 2026
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