The design of Crocs, an opinion-dividing American line of footwear, is no longer valid in the European Union after the bloc’s top court backed a decision by the EU’s intellectual property office (EUIPO) to nullify it, citing a lack of “novelty”.
On Wednesday (14 March), the European Court of Justice (ECJ) supported a 2016 decision by the EUIPO that declared the Crocs design invalid, after a French company lodged a complaint in 2013.
Crocs had claimed that the design was eligible on the back of a US design patent application filed in May 2004. But Community rules only provide protection if a design has not been released to the public before the preceding 12 month period.
The French company, Gifi, complained that the design had indeed been revealed prior to 28 May 2003, first on Crocs’ website and then at a boat show in Florida. The shoes were also available for sale at that point.
Crocs lodged an appeal with the ECJ after the EUIPO ruled in favour of Gifi but the Luxembourg-based court agreed that the three “disclosure events” precluded the design of the shoe from Community-granted protection.
The ruling added that the website meant that anyone in the EU could have accessed the design and that the Fort Lauderdale boat show was an international fair attended by industry professionals.
Finally, the judges concluded that because the shoes had been put on the market in several US states, it was “unlikely, given the importance for the EU market of commercial trends on the US market” that Europe’s clothing sector would not have been aware of the design.
Crocs now has two months to appeal the ECJ’s decision, although the company has not yet indicated if it intends to do so.
The EUIPO registers close to 85,000 designs a year based on the appearance, shape, pattern and colour of a wide-range of items, products and concepts. Protection at EU level allows a company or individual to challenge similar designs either directly with the EUIPO or in national courts.