Evert van Gelderen of the MARQUES Copyright Team reports (once again) on a recent copyright case in the Netherlands about the Birkenstock sandals, in which it was ruled that certain parts of these sandals are protected by copyright.

Once again, a Dutch court has granted copyright protection to Birkenstock sandals. However, this relates solely to the lower part of all the sandals and one element of the upper of one specific sandal from the Madrid model.

These proceedings were brought between Birkenstock on the one hand and Lidl and R&N (Rieg & Niedermayer) on the other.

In its verdict of 23 September 2026, the Gelderland District Court upheld a claim for infringement limited to the aforementioned elements and restricted to the territory of the Netherlands. Lidl and R&N were also ordered to provide information regarding the infringement and pay damages and Birkenstock’s legal costs.

The damages will have to be determined in separate damages proceedings.

A machine translation of the verdict can be found here.

Previous proceedings in Germany and the Netherlands

At the beginning of its judgment, the Gelderland District Court noted that various Birkenstock sandals had been the subject of legal proceedings.

For example, the German Bundesgerichtshof handed down a judgment on 20 February 2025 (ECLI:DE:BGH:2025:200225UIZR16.24.0). The Midden-Nederland District Court delivered a judgment in proceedings on the merits at first instance on 12 November 2025 (ECLI:NL:RBMNE:2025:5837). The subject of these proceedings has consistently been whether those sandals as a whole, or parts thereof, are protected by copyright. An earlier post on the MARQUES Class 99 blog discusses these judgments.

The earlier judgements predate the Mio & Konektra judgment of the Court of Justice of the European Union (CJEU) dated 4 December 2025 (Joined Cases C-580/23 (Swedish case, Mio AB v Asplund) and C-795/23 (German case, USM Haller v konektra GmbH).

The Mio & Konektra judgment was also discussed in a Class 99 blog post.

Judgment of the District Court of Gelderland

Facts

The proceedings between Birkenstock and Lidl/R&N concern five pairs of sandals offered by Lidl on the Dutch market, at the very least. The women’s sandals are marketed under the ESMARA and NATURAL WALK BY ESMARA brands, and the men’s sandals are marketed under the LIVERGY and NATURAL WALK BY LIVERGY brands.

R&N is listed as the manufacturer on the labels attached to two of the ESMARA-branded sandals at issue.

The sandals sold by Lidl are pictured right.

Are the Birkenstock sandals protected by copyright?

In its judgment, the court explicitly refers to the Mio & Konektra judgment. The judgment of the Dutch court was stayed pending this ruling, and the parties were given the opportunity to comment on its content.

The court first sets out the framework for assessment copyright protection, referring to previous case law (see margin numbers 6.10 to 6.13 of the judgment). The court then assesses the five pairs of Birkenstock sandals that form the core of Birkenstock’s claims (see margin numbers 6.14 to 6.50 of the judgment).

Birkenstock has argued that both the lower part and the five distinct upper parts (the so-called ‘uppers’) are protected by copyright.

Footbed: copyright protection. The lower part of every Birkenstock sandal, the footbed, is identical. The court assessed the various elements put forward by Birkenstock (see paragraphs 6.17 to 6.24). The court concluded that only one element of the lower part of Birkenstock’s sandals enjoys copyright protection.

This concerns the difference in height used, which creates a ‘wall’ at the back that slopes downwards towards the front. The other elements of the lower part cited by Birkenstock do not qualify for copyright protection.

Upper: protection applies only regarding an element of the ‘Madrid’ model. As mentioned, Birkenstock’s sandals are distinguished from one another by their uppers.

The court ruled that (only) one element of the upper of one specific sandal is protected by copyright. This concerns the way in which the narrower strap, approximately two centimetres wide, runs across a wider strap, of approximately five centimetres, in the upper of the Madrid model (see margin numbers 6.25 to 6.30).

The uppers of the other models (Arizona, Florida, Boston and Gizeh) are not considered to be protected by copyright (see margin numbers 6.31 to 6.50).

Is there copyright infringement?

After citing the infringement test set out in Mio & Konektra, the court concluded that Lidl and R&N are infringing the copyright held by Birkenstock (see margin numbers 6.51 to 6.56).

The footbed constitutes an infringement. This is because the footbed in all of Lidl’s and R&N’s sandals infringes the copyright. Although the lower part of Lidl’s sandals as a whole is somewhat flatter compared to the lower part used in Birkenstock’s sandals, the court found that, proportionally, it exhibits a similar profile. That profile is characterised by a higher rear section that slopes down with a clearly visible curve towards a flatter front section.

The court found that there has been a recognisable reproduction of the copyright-protected ‘wall’ of the sole.

A Birkenstock sandal is shown on the left and those from Lidl and R&N on the right.

The upper of one sandal constitutes an infringement. Furthermore, one sandal from Lidl infringes the upper of Birkenstock’s Madrid model.

The court found that, contrary to Lidl’s arguments, there has been a recognisable reproduction. Reference is made to the photographs below, which were taken by the court clerk. The photo on the left shows the Birkenstock Madrid model, and the photo on the right shows the similar sandal from Lidl and R&N.

No claim for slavish imitation

Birkenstock also invoked the legal doctrine of slavish imitation (see margin numbers 6.59 to 6.62 for an explanation of this doctrine under Dutch law). The court assessed this ground in relation to the Arizona, Florida, Boston and Gizeh models.

For a successful claim under this doctrine, it is required, amongst other things, that there must be an ‘own place in the market’. According to the court, this condition was not sufficiently met in the case of these models (see margin numbers 6.63 to 6.67).

The court also considered that Birkenstock has, in fact, allowed a wide variety of comparable sandals to enter the market, which have also managed to establish themselves. This has given rise to a rich design heritage, as a result of which any distinctive character has already been diluted.

This legal basis therefore failed.

To be continued?

The proceedings concerning the Birkenstock sandals do not appear to be over yet. The damages still need to be determined in separate proceedings. Furthermore, an appeal has been lodged against the earlier judgment of the Midden-Nederland District Court, as can be read on Birkenstock’s website.

Evert van Gelderen is a partner at Clairfort Attorneys, the Netherlands, and a member of the MARQUES Copyright Team. Please contact him directly for further information. The illustrations are taken from the judgment published by the Dutch court.

A new episode of the EUIPO podcast series Creative Sparks: From inspiration to innovation covers “Lessons from the Greats: Europe’s design stories”.

The podcast features Päivi Tahkokallio, designer, founder of Tahkokallio Design+ and long-standing member of the DesignEuropa Awards Jury, and Rosalía Cano, Action Manager of the DesignEuropa Awards at EUIPO.

It looks at how design transforms ideas into products, creates value for businesses and strengthens Europe’s creativity, innovation and competitiveness and highlights the importance of protecting design as a driver of economic and creative growth.

The speakers also discuss design as a key business asset and its role in IP strategy, particularly for entrepreneurs and SMEs.

The podcast episode comes ahead of the 10^th anniversary of the DesignEuropa Awards, which will be marked on 22 September at a ceremony in Ljubljana.

It is available on Spotify here.

The picture is from the EUIPO website and shows the podcast participants.

Sara Söderling of the MARQUES Designs Team reports on a recent decision from the EUIPO Board of Appeal (BoA) involving a SMEG refrigerator.

The case concerns invalidity proceedings regarding a registered design for refrigerators, recently decided by the BoA in R 2047/2025-3. The dispute centred on the assessment of overall impression to determine individual character.

The dispute: missing views in the prior art

The design at issue was EU registration 5236536-0007, filed on 16 April 2018 (pictured right).

The prior art originated from a ‘SMEG’ catalogue, showing the ‘FAB 32’ refrigerator displayed below.

The central issue was the impact of the prior art not disclosing corresponding interior views of the contested design.

Absent features still count

The BoA concluded that features in a prior design can only be considered to the extent they are visible in the submitted prior art. Absent features cannot be added by speculation, nor can their absence be overcome by dismissing the corresponding features in the contested design as legally irrelevant by default.

The BoA found that the contested design shared principal exterior characteristics with the prior art: a two-door upright refrigerator with an elongated monolithic body, rounded vertical transitions between front and sides, a retro-inspired silhouette, and two horizontal handles placed centrally on the upper and lower doors (paragraph 47).

The BoA therefore agreed with the Invalidity Division that the products showed strong exterior similarities in their closed state.

However, the BoA found that the Invalidity Division was wrong to treat the internal appearance of the contested design as having only secondary or negligible importance. A similar approach was taken by the Invalidity Division in Case No 000130546, where prior art was represented in a single perspective view and the absence of certain features was held not to be decisive and the shared views were treated as dominating the visual appearance.

Notably, the BoA concluded that the absence of certain features from the prior design is itself a relevant element in the comparison (paragraph 48). This conclusion cannot be avoided by stating that omitted features are of lesser significance because they are functional or because the external appearance will have a greater effect on the informed user. The BoA points out that normal use of the product in the present case involves opening the doors and interacting with the internal storage space, making the internal appearance part of the user’s regular experience. Consequently, these features cannot be dismissed as irrelevant by default.

Differentiated weighting requires justification

The BoA held that this does not mean all features automatically carry equal weight when assessing overall impression. Differentiated weighting is permissible, but requires adequate reasoning, which the Invalidity Division did not provide.

A global assessment must include all features

Taking the internal views properly into account, the BoA found that the Invalidity Division’s decision can no longer be upheld.

The contested design includes a specific visible internal arrangement, and the common exterior alone is insufficient for finding that the informed user would perceive no difference in overall impression.

Key takeaway: justify your reasoning

In summary, the BoA’s decision stresses that omitted features are also features that cannot be disregarded in a comparison of overall impression by default.

The BoA endorses the principle that different features may carry different weight, but this presupposes careful consideration and clear justification framed according to how the product is used.

The BoA found that the Invalidity Division erred in its assessment under Article 6 EUDR by giving decisive weight to exterior similarities while treating internal features as practically irrelevant without providing any real justification as to why.

Sara Söderling is an Associate Partner at AWA Sweden AB and a member of the MARQUES Designs Team. The images in this blog post are taken from the BoA’s decision.

Charlotte Duly of the MARQUES Education Team reviews Copyright in the Music Industry – A Practical Guide to Exploiting and Enforcing Rights (2^nd edition) by Hayleigh Bosher, published by Edward Elgar Publishing (Price £79.95 paperback, £136 hardback and available here).

The second edition of this text has been updated to include recent copyright case law in the music industry (including Ed Sheeran’s ‘Shape of You’ dispute) and covers topical areas such as streaming and AI.

This is not your usual legal text. This book has a light and humorous style whilst conveying complex copyright issues with clarity and the necessary depth to ensure that the reader is given sufficient information. For a good example on the humour point, look no further than the definition of “Parties” within the “Key Terms” section.

The book explains succinctly the benefit of copyright and why it is important, particularly in the music sector. The foreword from Tom Gray of the band Gomez provides an interesting comparison of copyright to real estate and the importance of ensuring that that is adequately protected stating “And, like any property, it needs walls, doors and a functioning lock. Because if you build a house and leave it open, don’t be surprised when Goldilocks PLC moves in, eats your Weetabix and rents out your spare room on Airbnb”.

This seems particularly apt with the increase in challenges to the music industry from streaming and more recently from the increased use of AI. This book is therefore a very useful text and is also fun and a pleasure to read: a pretty impressive combination.

In terms of the hot topics of AI and how authorship and ownership are treated of AI created works, this text considers the fundamental point of copyright, the core requirements for protection, and whether AI generated works should be granted copyright. No doubt this will be an ongoing conversation over many years and it is interesting to see the different and divergent approaches across the globe.

The lack of specific AI law in this field leads to the need to adapt copyright principles and case law to fit the ever evolving (in some cases rapidly) landscape. This book addresses that problem and provides useful context for dealing with AI in the modern world and balancing rights with technological progress.

A chapter is devoted to deepfakes and personality rights which will be of interest across the board, including to those outside the music industry. Whilst protection against deepfakes remains a difficult topic, the text is thorough and covers general principles noting that they differ from country to country.

There is also an interesting reminder of where you may find particular personality rights, including Guernsey which allows the protection of voice, likeness, appearance and other unique characteristics. This book contains points of interest for anybody involved with copyright whether they are in the music industry or not.

Whilst the music streaming platforms are looking to respond to the challenges that copyright owners face, this will not stop AI being misused and proactive steps combined with a sensible IP protection strategy will provide tools for taking action and being alert to issues early on.

This remains a constantly evolving landscape and copyright, along with other forms of IP, are key for those in the music industry to be able to continue to protect their rights and produce content for us to enjoy. This book is a useful tool in that ongoing challenge.

This post is part of an occasional series of book reviews by members of the MARQUES Education Team published on the Class 46 and Class 99 blogs. The picture shows the cover of the book

EUIPO has published the first EU designs represented using video and 3D, following the implementation of the final stage of the new EU designs regime on 1 July 2026.

The first video-represented EU design protects an animated graphical user interface for a mobile phone game. It was developed by Lessmore GmbH in Germany.

The first 3D-represented EU design protects a dice tray with a mobile phone holder. It is owned by Arranged BV in Belgium.

EUIPO says these registrations show how the new rules give designers greater flexibility to present their creations in the way they are actually experienced by users.

Video may be particularly relevant for designs that include animation or visual transitions, while 3D representation may help show the overall appearance of a product.

In the first half of July 2026, the EUIPO received 37 EU design filings using video and 20 using 3D representations. During the same period, the Office received 4 329 applications using static views, bringing the total number of designs received to 4,386.

The introduction of video and 3D representations reflects the increasing variety of digital and physical products for which design protection may be sought.

Applicants can consult the relevant EUIPO information and guidance to determine the most appropriate way to represent their design.

More information is available on the EUIPO website. The illustrations are taken from the online register

WIPO is hosting webinars on managing international design registrations over the next few weeks.

The webinars will cover how the Hague System enables you to centrally manage international design registrations through a single, streamlined procedure. Topics include:

• Recording changes in ownership
• Updating the holder’s name or address
• Appointing or changing a representative
• Renewing international registrations
• Managing your design portfolio efficiently throughout its lifecycle

The webinars are being held at the following times:

• Wednesday 22 July, 1600-1770 CEST (English)
• Thursday 23 July, 0900-1000 CEST (English)
• Thursday 30 July 1100-1200 CEST (French)
• Wednesday 5 August, 1600-1700 CEST (Spanish)

Find out more and book your place on WIPO’s website here. You can also play back recordings of webinars once they have taken place.

Eleven companies from Argentina, Brazil, Chile, China, Japan, the Republic of Korea, Switzerland, and the United States have won the WIPO Global Awards 2026.

The Awards reward SMEs and start-ups that demonstrate excellence in using IP. The winners were chose by a jury from a pool of 1,300 applications representing 126 countries.

Presenting the awards at a ceremony held during the WIPO Assemblies in Geneva, WIPO Director General Daren Tang said: “These Awards shine a spotlight on those exemplary SMEs that are not just registering and protecting their IP, but also using it strategically for business growth. We hope that they will inspire other entrepreneurs, and encourage policymakers to put in place programs and policies to help IP be part of every SMEs toolkit for success.”

The winners receive six months of 1:1 mentoring on IP strategy, market access and fundraising, and join the Global Awards Alumni Community, through which they connect with investors, accelerators, corporates and service providers.

The 2026 winners are:

• Agriculture & Food: SME: AgZen (United States) – AI-optimized crop spraying; Startup: Infira (Argentina) – Annual crops made perennials
• Environment: SME:  Botree (China) – Lithium battery recycling; Startup: FLOSFIA (Japan) – Energy-saving semiconductors for greener electronics
• Health: SME: ArteryFlow (China) – AI cardiovascular diagnostics platform; Startup: Regend Therapeutics (China) – Lung tissue regeneration
• Creative Industries: SME: Jade ND (Brazil) – Game-based learning platform for neurodivergent children; Startup: DABIDA (Republic of Korea) – Handwriting-based AI tutoring system
• ICT: SME: ICTK (Republic of Korea) – Keyless hardware security chips; Startup: Drovid (Chile) – Drones detecting human-caused forest fires early
• Sports: Special Award: Bearmind (Switzerland) – Helmet sensors tracking brain health in contact sports
• Special Mentions: Best Youth Entrepreneur 2026 – Vishnu Jayaprakash, CEO of AgZen (United States) (support for this recognition is provided by the ITC Ye! Community, a global platform powered by the International Trade Centre that connects young entrepreneurs with peers, mentors, and business opportunities) and Best Woman Entrepreneur 2026 – Renata Reinheimer, CEO of Infira (Argentina) (support for this recognition is provided by ITC SheTrades, an initiative of the International Trade Centre that works to create the conditions for women entrepreneurs to grow and trade internationally)

Photo: WIPO/Berrod from the WIPO LinkedIn page