Crocs produce footwear that is extremely successful and very recognisable. However, this hasn’t stopped them losing the right to protect their design from copycat designers.
An EU Court recently upheld a 2016 decision by the European Intellectual Property Office (EUIPO) to strip the company of its design protection under IP laws.
Failure to register
In 2002 the Crocs clog made its debut in Florida at a boat show and featured on the company’s website. Unfortunately, Crocs didn’t secure protection until 2005, meaning that under EU law, too much time had passed.
French retailer Gigi Diffusion brought this up to the EUIPO in 2013, who agreed that Crocs shouldn’t hold legal protection. In 2016, Crocs lost its protection in a clear message to designers everywhere to register early on for protection, even before success is guaranteed.
No evidence provided
The 2016 decision was further upheld in March 2018, as the court decided that Crocs had provided no sufficient evidence to show that people weren’t aware of the product.
Without this, it was inevitable that Crocs would lose the protection. This means that they can’t stop third party designers from using it, despite its prevalent connection with Crocs.
Will Crocs appeal?
There’s no doubt that Crocs are recognisable. This kind of design success should set a company up for the long term, but without sufficient design protection, Crocs will lose.
If they decide to appeal they will have to challenge the legal standard for deciding whether a design disclosure is known to relevant parties within the EU, which would be very difficult.
File for protection early
Filing for protection too late was a costly commercial oversight for Crocs. They may have wanted to reduce IP costs early on, but it’s cost them a lot more in the long term.
At Dawn Ellmore Employment, we work on a number of positions in the intellectual property sector. Please contact us for further information.