Contentious Clog Design Crocked

22 Mar 2018

The footwear brand Crocs is famous for its divisive design of plastic clogs – loved and hated equally by fashionistas across the globe.

In a recent ruling on appeal from the European Union Intellectual Property Office (“EUIPO”), the General Court of the EU has cancelled Crocs’ Community Registered Design for its plastic clogs (applied for in November 2004) on the basis the design was disclosed to the public more than 12 months prior to its registration. Unlike patents, designs can be disclosed in the 12 months prior to seeking a registration for them in the EU, known as the grace period, without the designs losing their novelty which would otherwise invalidate the subsequent registration.

Crocs did not deny that three disclosures outside of the grace period has taken place; (i) the design was displayed on its website (ii) the design was exhibited at an exhibition in Fort Lauderdale, and (iii) the design was sold within its US distribution and retail network.

However, Crocs position was that all disclosures had taken place outside of the EU and under the Community Design Regulation disclosures are not be taken into account if the disclosure could not reasonably have become known in the normal course of business to the circles specialised in the sector concerned, operating within the Community.

Crocs argued that the disclosures in the US would not have been known about by footwear brands in the EU.

The court rejected this entirely and upheld the EUIPO’s decision that Crocs’ design was invalid due to a prior disclosure to the public. Croc’s website was accessible world wide and displayed the contested Crocs’ design. Furthermore, the exhibiting of the design at an international footwear industry exhibition (which Crocs reported on its website had been a “smashing success”) and the fact the design was sold within Crocs’ US distribution and retail network (large and spanning most of the US) made it reasonably likely that the disclosures were known by the footwear industry operating within the EU. Especially, when factoring in the importance of the EU market to be aware of commercial trends on the US market.

Sarah Cook, Senior Associate says:

“This case highlights that all disclosures are relevant no matter where in the world they take place and the knock on effect this can have on securing certain intellectual property rights in the future. Brand owners should always avoid sharing and disclosing their designs with third parties until adequate commercial protection is in place.”

If this article prompts any thoughts you may have about IP protection, please get in touch. We can advise on all aspects of IP protection, including strategy and dispute resolution.

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