A Dutch ruling in favour of Birkenstock against Lidl has highlighted the challenges brands face when protecting functional designs through copyright across Europe. The decision conflicts with a 2025 German ruling that rejected copyright protection for the same footwear.
Cassie Hill, Partner at Mishcon de Reya, commented in World IP Review on the implications for brand owners and the importance of considering protection at the design stage.
She commented: “The injunction against the Lidl entities was expressly limited to the territory of the Netherlands. So, in principle, a retailer could sell the same product lawfully in Germany while facing an enforceable injunction the moment it crosses into the Netherlands." Cassie also noted the importance of considering the criteria for potentially relevant IP rights during the design process: "If you’re designing something functional and want copyright optionality later, the discipline has to start at the drawing board, not in the witness box.”
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