On 23 September 2026 the District Court of Gelderland ordered Lidl Nederland and the German producer of its sandals to stop selling Birkenstock lookalikes in the Netherlands, under a penalty of EUR 5,000 a day. The ruling is narrower than the headlines: copyright was found in only two elements, one of the footbed and one of the Madrid strap. It is a clear example of the design vs copyright question for works of applied art after the CJEU’s Mio and konektra judgment, and it matters to any brand with an iconic product.
Key takeaways
- Protected: the raised “wall” of the footbed shared by all five models, and the Madrid’s narrow strap laid over a wider band.
- Not protected: the Arizona, Florida and Boston uppers. The Gizeh upper’s copyright lapsed in 1998 together with an old Benelux design registration.
- Infringement turns on whether creative elements are recognisably reproduced, not on overall impression.
- The injunction covers the Netherlands only; the slavish imitation claim failed.
What did the Gelderland court decide?
In judgment ECLI:NL:RBGEL:2026:7234, published on 24 September, the court sitting in Arnhem upheld most of the claims brought by two Birkenstock companies against Lidl Nederland and Rieg & Niedermayer, the producer named on the sandals’ labels. It ordered them to:
- stop offering and selling the infringing sandals in the Netherlands, on pain of EUR 5,000 per day up to EUR 250,000;
- disclose, within three months, quantities, suppliers and professional customers since 7 November 2023, on pain of EUR 1,000 per day up to EUR 100,000;
- pay damages, to be assessed in separate proceedings, and EUR 47,194.90 in legal costs.
Claims against Lidl Stiftung failed. The judgment is provisionally enforceable and can be appealed.
Which parts of a Birkenstock are protected by copyright?
The court tested each claimed element for free and creative choices.
| Element | Finding |
|---|---|
| Gently sloping contour of the footbed | Not protected: follows the anatomy of the foot |
| Height difference forming a “wall” at the heel that slopes down towards the toes | Protected: a free and creative choice not needed for function |
| Support elements, visible layers, unlined cork edge | Not protected: dictated by the foot, or free but not creative |
| Madrid: a strap of about 2 cm laid over a band of about 5 cm | Protected |
| Arizona and Florida uppers | Not protected: variants of the Madrid without its protected feature |
| Boston upper | Not protected: closed clog shape is functional, other choices trivial |
| Gizeh upper | Copyright lapsed on 21 December 1998 |
The Gizeh is the cautionary tale. Its upper was registered as an international design covering the Benelux in 1983. Under the former Benelux design law, expiry of the registration also ended copyright unless a maintenance declaration was filed, and none was. The rule was abolished in 2003, but lost rights did not revive.
Lidl’s sandals reproduced the footbed wall recognisably, although flatter, and its Madrid-style model the strap layering, despite a strap over a centimetre wider.
What changed after the CJEU’s Mio and konektra ruling?
On 4 December 2025, in joined cases C-580/23 and C-795/23, the Court of Justice of the EU held that works of applied art face no stricter originality test than other works. What counts are free and creative choices that reflect the author’s personality; choices dictated by technical constraints do not qualify. For infringement, the question is whether creative elements have been reproduced in a recognisable manner, and the overall visual impression is irrelevant.
The Gelderland court waited for that judgment. Germany’s Federal Court of Justice had denied copyright for Birkenstock sandals on 20 February 2025 (I ZR 16/24, 17/24 and 18/24), and a Midden-Nederland court ruled on 12 November 2025, both before Mio and konektra. The result is an element-by-element analysis that can protect parts of a product even where the whole is not a work.
Design right or copyright: why use both layers?
| Feature | Registered EU design | Copyright |
|---|---|---|
| How it arises | Registration at the EUIPO | Automatically, on creation |
| Test for protection | Novelty and individual character | Originality: the author’s own intellectual creation |
| Test for infringement | Overall impression on the informed user | Recognisable reproduction of creative elements |
| Duration | Up to 25 years | Author’s life plus 70 years |
EU law allows both to apply to the same design: Article 135(2) of Regulation (EU) 2026/715 and Article 23 of Directive 2024/2823 say so expressly, and Spain’s Law 20/2003 provides for cumulation in its tenth additional provision. Copyright lasts for the author’s life plus 70 years under the Term Directive 2006/116/EC, but it must be proved element by element. A registered design is easier to enforce while it lasts.
What this means for your business
- Register new product designs; copyright is a back-up, not a substitute.
- Document who created what, when, and which choices were not dictated by function.
- Secure the chain of title. The court traced Birkenstock’s rights through decades of German transfers before reaching the merits.
- Audit legacy registrations. Old national rules, like the Benelux one, can affect copyright today.
- Plan the forum. The order covers only the Netherlands, partly because jurisdiction over the German producer rested on the place of harm.
For products sold across Europe and Latin America, our industrial design protection team can combine design filings with a copyright strategy, and our IP enforcement team can coordinate action against lookalikes.
Where companies get this wrong
- Claiming the whole product. Courts now dissect it; functional or trivial features drop out.
- Arguing overall impression in a copyright case. After Mio and konektra, that is the design test.
- Relying on slavish imitation. Here it failed for lack of evidence of a distinctive market presence.
- Losing track of authorship and assignments from designers and predecessor companies.
Coordinated advice on registration, title and enforcement avoids all four.
Frequently asked questions
Can copyright protect a product design such as a sandal?
Yes, if the design reflects the author’s free and creative choices. Under the CJEU’s December 2025 ruling, applied art faces the same originality test as other works, but features dictated by function are excluded. In the Birkenstock case, only two elements met that test, not the sandals as a whole.
Is the Birkenstock v Lidl ruling final?
No. The District Court of Gelderland’s judgment of 23 September 2026 is provisionally enforceable, so the injunction applies now, but it can be appealed. Damages will be set in separate proceedings, and German courts have reached a different result on Birkenstock models.
Can IP Global Guard help protect an iconic product?
Yes. We map which features qualify for design, copyright or trade mark protection, file designs before the EUIPO directly where our professionals are entitled and otherwise through qualified representatives, document authorship and title, and coordinate enforcement with local counsel across Europe, Latin America and Africa.
Protecting your iconic products with IP Global Guard
Even a famous product can lose most of its copyright claim; registration and paperwork decide the outcome. IP Global Guard, the IP services line of META Channel Corporation Limited, builds layered protection for products across more than 25 jurisdictions in Europe, Latin America and Africa.
Send us the products that define your brand and any lookalikes you have seen. We will tell you which rights you hold, which to register and how to act, from a single point of contact. Talk to our team about your designs.
This article is general information, not legal advice, and reflects the first-instance judgment as published.
Sources
- Rechtbank Gelderland, judgment of 23 September 2026, ECLI:NL:RBGEL:2026:7234 (published 24 September 2026)
- CJEU, judgment of 4 December 2025, Mio and konektra, C-580/23 and C-795/23
- Bundesgerichtshof, press release No. 038/2025, no copyright protection for Birkenstock sandals (20 February 2025)
- EUR-Lex, Regulation (EU) 2026/715 on European Union designs (30 March 2026)
- EUR-Lex, Directive (EU) 2024/2823 on the legal protection of designs (18 November 2024)
- EUR-Lex, Directive 2006/116/EC on the term of protection of copyright (27 December 2006)
- BOE, Law 20/2003 on the legal protection of industrial design, tenth additional provision
