Can Birkenstock Sandals Really Be Protected by Copyright? A Dutch Court Thinks So

A recent Dutch first-instance judgment has reignited the debate over whether fashion designs—especially utilitarian items like shoes—can qualify for copyright protection across the EU. In a surprising move, the District Court of Central Netherlands held that three Birkenstock sandal models do meet the EU originality standard, directly contradicting a 2025 ruling by the German Federal Court of Justice, which found that similar Birkenstock designs were not copyright-protectable.

A Split with Germany

The Dutch court acknowledged the conflicting German decision but nonetheless took a different route. While Germany denied copyright protection to the sandals, the Dutch court concluded that Madrid, Arizona, and Florida embody creative choices sufficient to qualify as original works under EU copyright law.

Why These Models Were Protected

Relying on CJEU case law (Infopaq, Painer, Cofemel, Brompton Bicycle), the court examined whether the designer had free and creative choices when shaping the sandal components. It identified a combination of expressive design features—such as the exposed cork sides, wavy footbed walls, and single-piece multi-straps—as evidence of originality. Functional constraints alone, the court held, did not dictate these design choices.

By contrast, two other models—Boston and Gizeh—did not receive protection. Boston’s key features already appeared in older designs, and the Gizeh’s copyright had lapsed under former Benelux law.

Which Scapino Sandals Infringed?

Applying a hybrid infringement test (part traditional copyright, part design-law-inspired “overall impression”), the court found that 13 Scapino sandals reproduced nearly all the protected original elements. While the terminology borrowed from design law raised eyebrows, the underlying analysis still focused on whether Scapino copied the elements expressing creative freedom.

A Cross-EU Copyright Puzzle

This ruling highlights a growing problem: despite the formal harmonisation of copyright criteria, EU Member States are still reaching opposite results on the same designs. The Dutch court would normally issue EU-wide injunctions—but how workable is that when Germany considers the same sandals unprotected?

The timing also adds intrigue. With the CJEU’s Mio/konektra decision imminent—expected to clarify copyright in works of applied art—the Dutch court’s bold move invites questions about whether national courts are staking out positions ahead of further EU guidance.

What This Means for Fashion Copyright

The decision reflects a generous and design-friendly approach to copyright in utilitarian objects. Yet it also exposes how much turns on factual interpretation, judicial discretion, and national legal culture. The forthcoming CJEU ruling may resolve some inconsistencies, or may simply reveal how far apart Member States remain.

Either way, the Birkenstock saga is far from over.

David Bridgeman – Solicitor