Crocs lost the legal right to protect its iconic plastic clog design after the EU court upheld a ruling that the design could not be protected under intellectual property laws. This was because Crocs made the fatal error of debuting the clog design publicly on its website in 2002 before filing for design protection in 2005, more than a year after the initial public disclosure. As a result, Crocs can no longer stop third parties from copying its extremely popular and recognizable clog design despite having sold over 300 million units globally. The case serves as a warning to designers that intellectual property should be protected as early as possible, even if a product's success is uncertain, to avoid losing protection should the design become widely copied later on.

1. Dawn Ellmore discusses the importance of
protecting designs early on
Crocs may produce one of the most instantly recognisable forms of footwear with its
iconic plastic clog design, but it has lost the right to protect it from copycat designers.
Recently, an EU court backed a decision made in 2016 by the European Intellectual
Property Office (EUIPO) that says the design can’t ben protected under IP
(intellectual property) laws. Judges in Luxembourg backed the EUIPO in its decision
to cancel all legal protection for the shoe design.
Error early on
The decision revolves around a fatal error made by Crocs before filing for design
protection. Way back in 2002, the Crocs clog made its fashion debut in Florida at a
boat show. It also featured on the company’s own website, and all of this before
Crocs had applied for legal IP protection.
EU rules state that protection can’t be given if a design has been out and about in
the public domain for more than a year before the application to the EUIPO is made.
French retailer kickstarted case
Crocs originally sought and were granted their patent in 2005, but in 2013, French
retailer Gigi Diffusion launched an objection. Realising that Crocs had been too late

2. to secure its patent, Gigi Diffusion appealed to the EUIPO arguing that the design for
Crocs shouldn’t hold legal protection. The ECJ ruling agreed, and subsequently
stripped the patent from the company.
It’s a very clear message to designers everywhere – that they should consider
protecting designs early on. Whether the product is successful or not, protection
should be sought, as it means a company is covered should they achieve the kind of
success that prompts people to try and copy their design.
Failure to provide evidence
The EUIPO’s decision was upheld by the General Court of the CJEU due to the fact
Crocs had failed to provide any convincing evidence that the relevant people within
the EU weren’t aware of the product much earlier than the date a patent was
granted.
Without decent evidence, it was inevitable that this decision would be upheld.
Without the rights to the design, Crocs can therefore no longer stop third parties from
using it, despite the product being almost universally recognised and extremely
successful.
Crocs have sold 300 million units globally and have achieved an almost legendary
status. In 2015, Prince George was pictured wearing some baby Crocs and Amazon
sales leaped by 1,500%.
Will Crocs appeal?
There’s no doubt that Crocs are recognisable pretty much everywhere. This kind of
design success should set a company on track for decades, but without the patent
protection, Crocs will lose out.
If they decide to appeal this decision, then they will have to challenge the actual legal
standard for deciding whether a design disclosure is known to the relevant people
within the EU. This would be extremely difficult and it remains to be seen whether
Crocs will try.
Late filing
Filing for patent protection too late is a huge commercial oversight for Crocs. It could
be that the company wanted to reduce IP costs early on, before they knew how
successful the product would be.
If you’re fascinated by the world of intellectual property, then you should contact the
team at Dawn Ellmore Employment. We have a variety of entry level, support and
fee earner positions available.