Novelty
The case against Crocs was brought by the Spanish company GOR Factory. According to GOR, the design of the Croc was not new when Crocs applied for design protection in 2004. Under design law, protection can only be granted for new designs. Designs that were already publicly available before registration are not considered new and generally cannot be protected.
Invalid
The European trademark office agreed with GOR Factory, concluding that the Crocs design was indeed not new at the time of its registration in 2004. GOR provided evidence that as early as 2003, the Canadian company Holey Soles had displayed a nearly identical shoe on its website, the only difference being the absence of a heel strap. According to the Board of Appeal, this means Crocs’ design registration is invalid and must be revoked.
Previously declared invalid
Interestingly, this same Crocs design registration had already been declared invalid twice before, in 2008 and 2018, by European courts on the grounds that the design was not new. However, in both cases, Crocs managed to retain its registration. Crocs filed an appeal and entered negotiations with the opposing party. Both times, this resulted in a settlement, after which the claimant withdrew its initial request for a declaration of invalidity, allowing Crocs’ registration to remain intact. It is likely that the company had to pay a significant sum to achieve this outcome.
Appeal?
Meanwhile, Crocs has anounced it is assessing an appeal against the February 5 ruling. The company may attempt the same strategy again, given the high stakes. Without this design registration, it will be much harder for Crocs to take action against imitators. Whether Spanish company GOR Factory is willing to reach a financial settlement with the U.S.-based Crocs—which achieved a record revenue of $4.1 billion in 2024 with over 7,000 employees—remains to be seen.
Crocs’ response
After this article was published in Dutch newspaper de Volkskrant, we received a response from Valeria Romano, PR & Communications Specialist of Crocs:
Crocs strongly disagrees with the decision of the Third Board of Appeal of the EUIPO dated 5 February 2025 and is currently assessing an appeal. Irrespective of the EUIPO decision, the Crocs Classic clog continues to be protected by several additional intellectual property rights including copyright, three-dimensional trademark rights, passing off and unfair competition principles of national laws in the EU and elsewhere. The decision of the EUIPO Board of Appeals will not impact Crocs’ enforcement efforts and Crocs will continue to vigorously pursue infringers seeking to trade on Crocs’ rights in its iconic clog.
Bas Kist
This article was previously published in De Volkskrant
Photo by Kamal Preet Kaur on Unsplash
