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Crocs Loses EU Patent Protection, Putting its Designs up for Grabs

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An over-eager move made by Crocs in 2002 is now rearing its ugly head.

An EU court confirmed Crocs’ patent for its signature clog design had been invalidly registered, leaving Crocs’ signature design unprotected in Europe.

On Wednesday, the Luxembourg-based court upheld the 2016 decision to cancel the registration of the U.S.-based clog brand’s design because it was made available to the public before its registration.

According to an EU regulation, a design won’t be considered “new” if it has been available to the public during the 12-month period prior preceding its registration, except when the disclosure could not have reasonably become known to those in the EU that specialize in the sector.

The General Court of the European Union said Western Brands LLC—Crocs’ original company name—filed an application for its Classic clog construction with the European Union Intellectual Property Office (EUIPO) in November 2004, citing that a U.S. design application was filed in May 2004. The design was registered as “community” design in February 2005 and later transferred to Crocs in November 2005.

In 2013, French brand Gifi Diffusion filed a lawsuit that argued that the design “lacked novelty” because it had been disclosed prior to May 28, 2003. Gifi said Western Brands had already been in business for two years, selling pairs of clogs at the 2002 Fort Lauderdale Boat Show in Florida and displaying the shoes its website.

EUIPO declared the design invalid in 2016, which Crocs appealed claiming that the disclosures of the design could not have reasonably have become known to people in the EU footwear sector. The latest judgement confirms EUIPO’s decision.

The General Court noted, in particular, that Crocs failed to establish that it was not possible for shoe manufacturers operating outside the U.S. to find its website and that the boat show had not become known to those professionals, given that it was an international fair and “that the exhibition of the clogs in question had been a smashing success.”

The court added that the clogs were put on sale in some U.S. States and that it was therefore unlikely, “given the importance for the EU market of commercial trends on the U.S. market,” that it went unnoticed by the European footwear sector.

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