Crocs blown away

Designs

The famous - or infamous - plastic Crocs shoes caused quite a stir today. The General Court of the European Union cancelled Crocs' design registration.

Background

Crocs has a European trademark registration for the plastic clog since 2005. Gifi Diffusion, another party, requested EUIPO to annul that registration back in 2013, as the design would not be new and original.

New or not

One of the conditions for design protection is that the product in question has to be new. That means that the design cannot have been made available to the public yet. When a design has been made public and has had a chance to come under the attention of insiders in the concerned sector of the European Union, the design is no longer new.

Nevertheless, there is a grade period for design: the design may still be registered if the design has first been made available to insiders in the concerned sector of the EU within 12 months.

Crocs design

Made available… in the United States

EUIPO ruled that the design was in fact no longer new, because it was already made public before the 12 months prior to the date on which protection was claimed. The Court has now confirmed this and annulled the Crocs-design.

But why were Crocs no longer new? Prior to a year before the claimed protection date, the clogs were shown on the website of Crocs. They were also already offered for sale in numerous stores in the United States and they were put on display on a Boat Show in Fort Lauderdale, Florida (USA).

The crux of Crocs? Crocs has registered its shoe design too late.

Fleur de Wolf - Trademarks & Designs

The United States? Yes indeed, the United States.

The Court is of the opinion that Crocs could not prove that shoe manufacturers and professional sellers outside of the US could not reach the Crocs website and did not know about the “super successful” display of the shoes during the Boat Show in Fort Lauderdale. The Court ruled that, taking the interests of commercial trends on the American market for the European market into account, it is rather unlikely that Crocs would have remained unnoticed by insiders in the concerned sector of the EU.

The crux of Crocs? Crocs has registered its shoe design too late. By reason of, publications on the internet, displays of the product, the selling and other disclosures outside of the EU can also cross design protection in the European Union. Thus, in order to safeguard the novelty of a product, do not wait too long with starting the registration process of a design.