Intellectual property rights are valuable business assets but are often not a priority for businesses until a problem arises. A competitor launches a similar-looking product or questions of copying emerge, and suddenly attention turns to what rights exist and how the business can enforce those rights.
Recent litigation involving Birkenstock provides a timely reminder that it is important to adopt a comprehensive intellectual property strategy from the outset rather than relying on a single form of protection.
In February 2025, Germany’s Federal Court of Justice ruled that several of Birkenstock’s iconic sandal designs, including the Arizona and Madrid styles, did not qualify for copyright protection under German law. The court found that the appearance of the sandals was shaped by their functional and orthopaedic purpose rather than as a result of creative choices capable of attracting copyright protection.
This decision was a significant setback for Birkenstock which had sought to rely on copyright law to prevent competitors from marketing similar products.
By contrast, in November 2025, a Dutch court reached a different conclusion, finding that certain elements of the Arizona, Madrid and Florida styles reflected sufficient creative choices to qualify for copyright protection under Dutch Law.
More recently, in September 2026, another Dutch court found that elements of Birkenstock’s sandal designs, including aspects of the footbed, did attract copyright protection. The court subsequently found that certain sandals sold by Lidl and R&N infringed those protected elements.
The Birkenstock decisions highlight a question frequently asked by businesses: when does a product design qualify for copyright protection?
Copyright protection is available where the design constitutes the author’s own intellectual creation. Features dictated solely by technical, functional, or practical considerations will generally face greater difficulty in attracting protection.
The challenge is determining whether the author exercised sufficient creative freedom for the design to be regarded as an original creative work rather than a simply functional solution.
As the Birkenstock litigation demonstrates, courts can reach different conclusions when applying those principles to the same products.
The more important lesson for businesses lies elsewhere. Successful products are often protected by a combination of intellectual property rights. Copyright can play an important role but should rarely be viewed as the sole means of protection.
Depending on the circumstances, businesses should also consider:
registered designs to protect the appearance of a product;
trade marks protecting brand names and logos;
shape marks where appropriate;
unregistered design rights; and
confidential information and know-how protection during product development.
Each right protects a different aspect and may provide protection where another right is unavailable. By adopting a layered approach, the protection available is not only wider in scope but, if one right is challenged, there are other rights that remain in place.
The continuing Birkenstock disputes demonstrate that copyright protection for product design is rarely straightforward. A design that attracts protection in one jurisdiction may not do so in another, and even where protection exists, it may apply only to specific elements rather than the product as a whole.
The Birkenstock litigation also illustrates the importance of considering intellectual property strategy early in a product's lifecycle. Taking the time to identify and secure intellectual property rights early on can make it much easier to protect a business’ interests if issues arise further down the line.
For businesses seeking to protect product design, the safest route is rarely to rely on copyright alone. Instead, a carefully considered combination of intellectual property rights will often provide the strongest and most durable protection.
For more information, please contact our intellectual property team.
