In her contribution to the Wolters Kluwer Copyright Blog Landine Varela discusses the judgment in the Birkenstock v. Scapino case, pronounced by the District Court of Central Netherlands. Read the blog below, which was published on February 19, 2026.
The German company Birkenstock is known to the general public for its sandals and has regularly been involved in lawsuits to protect its designs. On November 12, 2025, the District Court of Central Netherlands ruled that the Dutch shoe chain Scapino had infringed Birkenstock’s copyright on three well-known sandal models (ECLI:NL:RBMNE:2025:5837).
The judgment was delivered shortly before the Mio/Konektra ruling of the Court of Justice of the EU, but would likely have had the same outcome if it had been delivered afterwards – at least, that is the opinion of the authors of this article.
Facts
Birkenstock filed a lawsuit against Scapino, in which the company claimed that the sale of certain sandals (the Madrid, Arizona, Florida, Boston, and Gizeh models) infringed Birkenstock’s copyright. Birkenstock sought, among other things, an injunction, disclosure of sales data, and damages.
Scapino disputed the claim that the sandals were copyright-protected works. According to Scapino, the appearance of the sandals was largely determined by functional and technical considerations. Additionally, Scapino invoked the lapse of rights, referring to prior correspondence and Birkenstock’s enforcement practices.
Copyright protection?
The court first assessed whether the sandals qualified for copyright protection. Referring to established Dutch and EU case law, the court reiterated that only works that are original in the sense of the author’s “own intellectual creation” are protected. The fact that the design of a product may be partially determined by technical or functional requirements does not exclude protection, provided the author was free to make creative choices that reflect his or her personality.
Based on this, the court ruled that the Madrid, Arizona, and Florida models were protected by copyright. The court ruled that creative choices had been made in the design of these sandals, including the shaping of the heel and the midsole, the specific shape of the toe support, the decision to leave the sides of the sandals uncovered to show the cork footbed, and the manner in which the upper was attached to the lower part of the sandal.
The court explicitly noted that it had taken note of the ruling of the German Bundesgerichtshof of 20 February 2025, in which two of these Birkenstock models did not 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 showed that a clog with a similar upper already existed in 1971. The copyright on the Giza design had lapsed at that time under the legislation then in force, because the Benelux design registration from 1983 had expired after fifteen years and a declaration of maintenance had not been filed in time.
Infringement
The court subsequently examined whether infringement had occurred for each protected Birkenstock design. This entailed comparing the “general impression” of the sandals offered by Scapino with the combination of characteristic design elements of the Birkenstock sandals.
The comparison showed that Scapino had reproduced virtually all characteristic elements of each of the three protected designs. Any differences were barely noticeable and did not affect the overall impression of the combination of design elements. The court therefore concluded that copyright infringement had occurred with respect to all three protected designs.
Loss of rights
Scapino’s defense based on loss of rights was partially successful. In a cease and desist letter from 2015, Birkenstock had objected only to the sole of the sandals, and the parties had reached an agreement on that specific point. Scapino was therefore entitled to assume that Birkenstock had no objection to the rest of the design.
However, this did not prevent Birkenstock from asserting its rights at a later date. Given the earlier agreement, however, the Court ruled that Birkenstock should exercise some restraint.