Crocs is No Longer the Only Brand Allowed to Make the Ugly Clog

Thanks (or maybe no thanks) to Balenciaga, Christopher Kane, and the rise of ugly shoes as an industry-wide trend, Crocs have made their way into fashion’s psyche. But while London-based Kane is busy bejeweling the oh-so-ugly clogs, and adding fur to them for colder seasons, Crocs has been in and out of court in a dispute — or actually, disputes — with rival footwear brands.

In the U.S., Nevada-based Dawgs filed suit against Crocs last summer in a Nevada federal court, accusing Crocs of copying one of its trade dress-protected footwear designs, and the two have been sparring in that still-ongoing case. Meanwhile, in Luxembourg, the home of the European Union (“EU”)’s General Court, the Colorado-based brand has been embroiled in a fight to protect its classic clog.

While beginning in 2005, Crocs maintained “community design” protection in the EU –  in accordance with which "the appearance of the whole or a part of a product” may be protected by law for 25 years – for its rather iconic slip-on shoe, the brand was faced with pushback almost ten years later. In 2013, French brand Gifi Diffusion took issue with the design, arguing that Crocs’ design registration should be invalidated because the shoe lacks novelty.

In asking the European Union Intellectual Property to cancel Crocs’ design registration, Gifi alleged that it ran afoul of the EU requirements for novelty, including the EU Council regulation that in order for a design to be subject to protection it “must not have been made available to the public during the 12-month period preceding the priority claimed [May 28, 2003 in the case at hand], except when the disclosure could not be known to the relevant industry in the EU.”

According to Gifi, Crocs had, in fact, debuted the shoe design prior to May 2003 … at the Fort Lauderdale Boat Show in Florida in November 2002, as well as on the brand’s website. Still yet, Gifi pointed out that the Crocs footwear was even available for sale before to date of priority.

Despite Crocs arguing that EU manufacturers could not have known about the design before it filed its EUIPO application in late 2004, the EUIPO sided with Gifi and declared Crocs’ design right invalid in June 2016, prompting Crocs to appeal the decision before the EU General Court.

Now, almost five years after the start of the case, the General Court has confirmed the EUIPO’s finding that Crocs’ design right is invalid. The court held that taken together, the debut of the Croc design in the U.S. in 2003, the presence of the footwear on Crocs’ website, and the fact the shoes were available for purchase all before May 2003, the footwear could rightfully be considered to have been available to the public.

As a result, Crocs has been deprived of its registration for its namesake plastic clogs in the EU. Whether this means that there will be a bunch of perfectly legal Crocs x Balenciaga collaboration lookalikes hitting the web soon, that is yet to be seen.