Birkenstock has secured a significant victory against Lidl in the Netherlands, with the Dutch court ordering Lidl to stop selling several lookalike sandal designs. Lidl faces a fine of €5,000 (£4,200) per day if it fails to comply, must hand over sales data and pay Birkenstock's legal costs.
For brand owners, the decision is a timely reminder of both the value and complexity of protecting successful product designs. As retailers and online marketplaces continue to offer lower-cost lookalikes, businesses are increasingly looking to intellectual property rights as a means of protecting brand identity and product distinctiveness.
The ruling is particularly noteworthy because it follows a 2025 decision of Germany's highest civil court, which held that Birkenstock's sandals did not qualify for copyright protection. We discussed the German decision in more detail here: European courts out of step: What Birkenstock's split decisions mean for copyright protection of works of applied art.
At first glance, the decisions may appear difficult to reconcile. More fundamentally, they illustrate a challenge faced by many brand owners: determining what rights protect commercially successful products and whether those rights can be enforced consistently across different jurisdictions.
Different courts, different approaches
The contrasting decisions highlight the continuing uncertainty surrounding the protection of product design across Europe. Historically, copyright has been associated with literary, artistic and creative works. Product designs, by contrast, have often been viewed as primarily functional and therefore more appropriately protected through design rights. Copyright can provide powerful protection with a potentially longer duration than design rights, making it an attractive enforcement tool where available.
The German court adopted a relatively restrictive approach, concluding that Birkenstock's sandal designs were primarily driven by functional considerations and did not satisfy the threshold for copyright protection.
The Dutch court reached a different conclusion, finding that Birkenstock's footbed design was capable of copyright protection. The result demonstrates that even where the product is the same, courts may take different views on the balance between functionality and creative expression.
The cases serve as a reminder that applying copyright and design right principles to product design is rarely straightforward and that courts may draw the line between functionality and creativity in different places.
Where would the UK sit?
These decisions highlight the importance of carefully considering which IP rights are available to protect product designs. While copyright can subsist in certain artistic works, including graphic works and works of artistic craftsmanship, securing protection for mass-manufactured products is not always straightforward.
For businesses, the key question is whether the features they wish to protect reflect genuine creative choices, rather than being driven primarily by functionality or technical requirements. Products whose appearance is heavily influenced by practical considerations may face a higher hurdle when seeking copyright protection.
Equally, businesses should not assume that mass production prevents copyright from arising. UK courts recognise that industrially produced products can attract protection in the right circumstances. Whether copyright subsists will depend on the specific design, the nature of the creative contribution and the facts of the individual case. As a result, businesses launching, licensing or enforcing rights in product designs should consider their IP strategy carefully and assess the extent to which copyright may complement other forms of protection, such as registered and unregistered design rights.
A reminder for brand owners
The Birkenstock decisions are less about whether one court was right and the other wrong, and more about the uncertainty that can arise when protecting successful product designs.
For businesses investing heavily in product development, branding and design, the cases underline the importance of taking a strategic approach to intellectual property protection from the outset. The strongest enforcement position will often come from combining multiple rights, rather than relying on any single form of protection.
The decisions also serve as a reminder that enforcement outcomes may differ across jurisdictions, even where the underlying products are identical. Businesses operating internationally should therefore avoid assuming that a favourable decision in one country, or reliance on one category of IP right, will necessarily translate elsewhere.
As lookalike products continue to present a commercial challenge across multiple sectors, from fashion and footwear to furniture, beauty and consumer goods, businesses should regularly review whether their key products are adequately protected and whether additional rights can be secured before competitors enter the market.
If you would like to discuss protecting key products, building a robust IP strategy or tackling copycat products, please get in touch with a member of our Intellectual Property team.
