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.

Infringement

The Court then examined, for each protected Birkenstock model, whether infringement had occurred. This involved comparing the “overall impression” of the sandals offered by Scapino with the combination of distinctive design elements of the Birkenstock sandals.

The comparison showed that Scapino had reproduced virtually all the distinctive elements for each of the three protected models. Any differences were barely noticeable and did not affect the overall impression of the combination of design features. The Court therefore concluded that there was copyright infringement with respect to all three protected models.

Forfeiture of rights

Scapino’s forfeiture of rights defense partially succeeded. In a 2015 cease-and-desist letter, Birkenstock had raised objections only to the sole of the sandals, and the parties had reached an agreement on that specific topic. Scapino was therefore entitled to assume that Birkenstock had no objections to the rest of the design.

This did not prevent Birkenstock from deciding to enforce its rights at a later date. However, in light of the prior agreement, the Court held that Birkenstock was required to act with some restraint. The 2023 cease-and-desist letter, which demanded an immediate injunction, was found to unreasonably prejudice Scapino, which should have been given a reasonable period to remove the sandals from the market.

Decision rendered before Mio/Konektra

The judgment was issued before the Mio/Konektra ruling (CJEU, 4 December 2025). Until that ruling, Dutch courts generally placed a central emphasis on the overall impression of the allegedly infringing work and the protected work, albeit only to the extent that the similarity was caused by copyright protected elements.

In Mio/Konektra, the CJEU clarified that for works of applied art, no different originality test applies. In assessing infringement, the focus must be on whether the copyright protected creative elements have been recognisably copied. The “overall impression” created by each work cannot be decisive in determining copyright infringement. This clarification does not affect the District Court’s ruling in our opinion, seeing as virtually all the distinctive elements of the Birkenstock sandals were reproduced by Scapino and the overall impression was therefore not a decisive factor in the assessment.