Crocs cannot protect clog design in EU

Footwear maker Crocs cannot register to protect its namesake plastic clogs in the European Union as rival shoemakers had seen them long before the application was made, an EU court said on Wednesday.

The case came before the General Court of the European Union after French retailer Gifi argued in 2013 that the Crocs design should not be protected, a claim supported by the EU’s intellectual property office in 2016.

Siding with the EU agency, the court said Crocs released the design well before it filed for registration, notably on its website, at an international trade fair in Florida and through sales in a large number of U.S. states.

Nasdaq-listed Crocs, which posted a wider than expected fourth quarter loss in February, had argued that EU companies would not have known about this.

“Crocs failed to demonstrate that the disclosure events established (...) could not reasonably have become known in the normal course of business to the circles specialised in the sector concerned, operating within the EU,” the Court said.

Under EU rules, a design can only be protected if it is new or has “individual character”. It loses its novelty once it is publicly distributed.

Crocs has two months to decide whether it wants to appeal the ruling at the EU’s highest court, the European Court of Justice.