My Crocs are up the creek!

In March this year, the General Court of the European Union held that the design of Croc shoes was invalid due to a lack of novelty at the time of the application in 2004. In a nutshell, a novel design cannot have been introduced before the application for a Community Design. A registration is still possible in specific cases up to 12 months after the disclosure. The reason behind this invalidation? Crocs had shown their clogs at the Fort Lauderdale International Boat Show in 2002.

Gifi, a French store, also produced a number of screenshots from the Crocs website in 2002 as evidence. The Court regarded it as having been sufficiently proved that the design had been disclosed to the public more than 12 months before the registration. To then go on to claim novelty, Crocs would have to prove that the shoe’s design could not reasonably have come to the attention of any aficionados in the sector in the EU. Crocs failed to do this. Crocs’ lawyers argued on this that they could not be expected to prove a negative, i.e. that the shoe had not become known to the aficionados. And if it had come to their attention then, wouldn’t this have been an easy thing for Gifi to prove? The Court conceded the argument for Crocs, but this didn’t mean it was up to Gifi to provide evidence. The Court did drop a hint about the sort of evidence that Crocs could have supplied, for instance by showing that there had not been any European internet traffic to the website or that the boat show had not been attended by any European companies.

Crocs were caught on the hop, as they could not satisfy the Court that aficionados in Europe couldn’t have known about the design. It’s good that the Court gave some idea about how this sort of situation can be proved. Crocs are taking the case to the Court of Justice. In the meantime, they’ll maybe be a bit more careful with  International Boat Shows.

Lars Frietman, student intern

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