Crocs loses design protection in Europe: The importance of novelty in design registration

In 2025, the Board of Appeal of the European Union Intellectual Property Office (EUIPO) invalidated the design registration of Crocs, known for the iconic plastic clogs, in the European Union. This followed a legal battle with Spanish clothing manufacturer Gor Factory, which argued that the design did not meet the novelty requirement. The ruling could have major implications for Crocs’ protection against counterfeiting, as the lack of design protection paves the way for competitors to market similar designs.

Background to the dispute

In 2004, Crocs registered the design of their well-known “clogs” with the EUIPO. In October 2022, Gor Factory initiated invalidity proceedings, arguing that the design was not new and lacked individual character. In other words, according to Gor Factory, the design had already been made public before the filing in 2004 and the design creates the same overall impression on an ‘informed user’ as that previously published design. An informed user in design law is one who regularly uses the product in question, is familiar with various designs on the market, and shows a heightened degree of attention and awareness when evaluating designs.

As evidence, Gor Factory cited an archival version of the Happy Soles website from 2003, which showed a red clog with a similar sole and perforations on the top and sides. This footage, taken from the Wayback Machine, a digital archive that records the disclosure date of online content, showed, according to Gor Factory, that Crocs’ design was publicly known before it was registered.

Crocs defended itself by arguing that its model was distinguished by the presence of a heel strap, which was not seen on Happy Soles’ older design. This, it claimed, would give a different overall impression and still give its model an individual character.

The Invalidity Division of the EUIPO did not follow this reasoning and declared the design invalid on January 22, 2024. According to the Invalidity Division, the heel strap was only a small, functional detail that did not significantly change the overall impression of the shoe. The core of the design – the shape, placement of the perforations and overall proportions – were too similar to Happy Soles’ older design.

The Board of Appeal’s decision

Crocs appealed to the Board of Appeal. There it maintained that the heel strap was a distinctive feature and that an informed user has a critical eye for details and would therefore immediately notice whether a shoe has a heel strap or not. This, according to Crocs, would result in a different overall impression, so their model had to be considered novel and individually distinctive.

The Board of Appeal stated that the informed user plays an important role in assessing design protection. This case assumed that the informed user is a consumer who is accustomed to buying and wearing clogs, is aware of design variations and actively seeks information, for example, through catalogs and online stores.

Nevertheless, the Board of Appeal ruled that the heel strap was not sufficient to consider the model unique. Although the heel strap is a visible difference, the overall impression of the model is largely determined by the shape of the shoe, the placement of the perforations and the overall proportions. Because these features were largely identical to the older Happy Soles design, an informed user would not consider the Crocs model a completely new design. The heel strap was seen as an incidental and functional element that did not differ enough from the older design to create a different overall impression.

The Board of Appeal emphasized that a high degree of design freedom in the industry also factors into this assessment. In the footwear industry, designers have a lot of freedom to make variations in materials, colors and details. This means that if a new design has only minor differences from an existing model, it is not easily considered new or individually distinctive. Since the Crocs model was virtually identical to the older design at its core, the Invalidity Division’s decision stood and the design registration was permanently invalidated.

Effects of the ruling

As a result of this decision, design protection for Crocs has lapsed in Europe. This allows competitors to market similar designs without legal obstacles. This makes it more difficult for Crocs to take action against counterfeit products.

Yet this is not the first time Crocs has found itself in this situation. Previously, in 2008 and 2018, similar rulings were made regarding their design registration. In both cases, Crocs still managed to retain some protection through settlements with counterparties. Whether Crocs will again try to reach a settlement with Gor Factory remains unclear. However, the company has gained a reputation for legally questionable design registrations, and the public attention surrounding this issue may make a settlement less effective.

Another factor is that, because of this ruling, Crocs may have unfairly laid legal claims against competitors in the past. Now that their design registration has been permanently invalidated, this could lead to previous lawsuits or licensing agreements being reviewed.

Questions?

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