Crocs is taking on Five Below in a new lawsuit over the discount retailer’s clog-style footwear and charms. In a complaint filed in the U.S. District Court for the District of Colorado on September 18, Crocs, Inc. and Jibbitz, Inc. accuse Five Below of infringing Crocs’ Classic Clog trade dress and a footwear design patent, along with three utility patents covering systems used to secure decorative charms to footwear and other wearable items.
At the center of the case are Five Below’s “Juniors Charm Clogs,” which Crocs and Jibbitz claim infringe their trademark and patent rights. Crocs alleges that the footwear copies elements of its Classic Clog and the sole design of its more recent Saru clog.
Clogs, Charms & Trade Dress
Crocs’ trademark claims stem from two federal registrations covering elements of the Classic Clog’s three-dimensional design, including its pattern of holes, trapezoidal openings, and textured band. Crocs alleges that Five Below’s clogs use these and other elements of its Classic Clog trade dress in a way that is likely to cause consumer confusion. It also targets Five Below’s “Novelty Shoe Purse,” a clog-shaped accessory that Crocs says mimics its Classic Clog trade dress and a similar Crocs product, the Classic Clog Pouch Bag Charm, via a similar perforated front and boxy silhouette.
Jibbitz, meanwhile, relies on three utility patents, which cover systems and methods for securing decorative accessories to shoes and other wearable items. Jibbitz alleges direct infringement based on Five Below’s display of the charms with molded shoes on its website and sale of the charms together with molded shoes, as well as induced and contributory infringement based on its sale of the accused products for customers to integrate into the claimed systems.
Crocs says it sent Five Below a demand letter on March 4 identifying the challenged products and detailing its trade dress and patent rights. It maintains that Five Below acknowledged the letter twice but continued selling the challenged shoes, charms, and related products until as recently as June. Setting out claims of trademark and trade dress infringement and dilution, design and utility patent infringement, and unfair competition, Crocs and Jibbitz are seeking injunctive relief, profits and damages, attorneys’ fees, and destruction of allegedly infringing inventory.
THE STRATEGY: The rights Crocs is asserting allow it to target different aspects of Five Below’s alleged conduct. The trade dress claims turn on likelihood of confusion arising from Five Below’s alleged use of source-identifying features; the design patent claim on the ornamental appearance of the accused footwear; and the utility patent claims on how the charms and footwear function together.
The Jibbitz claims demonstrate this particularly well. The patents provide a basis for challenging the system created when certain charms are combined with molded footwear containing expandable holes, rather than the charms as standalone products. That gives Jibbitz a theory of infringement based on how the products work together, regardless of whether Five Below’s charms look like Jibbitz charms.
The case also illustrates the value of building an IP portfolio around how a product is actually sold and used. Here, the asserted rights do not stop with the appearance of Crocs’ core footwear. Crocs claims registered and common-law trade dress rights that reach the clog and a clog-shaped accessory, while its design patent protects an ornamental footwear design featured in the Saru clog. The Jibbitz patents address another aspect of the business altogether: how decorative accessories are combined with footwear and other wearable items.
Together, those rights give the plaintiffs potential claims against products that copy the look of Crocs footwear, products that carry that look into other categories, and products whose use implicates Jibbitz’s patented systems.
The case is Crocs, Inc. et al. v. Five Below, Inc., 1:26-cv-04606 (D. Colo.).
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