Crocs – the infamous foam and plastic clog manufacturer – has recently lost a battle in the European court to protect its brand.

In 2016, the European Union Intellectual Property Office (EUIPO) decided to withdraw protection for Crocs’ renowned, yet controversial, design, following a challenge by a French company.

Crocs appealed to the European Court of Justice (ECJ), which supported the EUIPO’s original decision. The court’s logic was based on timing – under EU law, a company can’t be awarded patent protection if a design has been released to the public more than 12 months prior to the application. In other words, the design must be novel. In Crocs’ case, it launched its shoe design launched in an international trade fair back in 2002. But, it didn’t apply for patent protection until 2004.

The ECJ concluded that the initial launch of the Crocs had been a “smashing success” at the outset and the products were sold worldwide and were even featured on their website since. As such, it rejected the arguments of Crocs’ lawyers that shoemakers in the EU could not have been aware of the shoe design. It found that:

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 shoe company has two months from the date of the judgment to appeal, though it has given no indication of whether it intends to do so.

This case should serve as a warning to all those in the creative industry. While the UK is bound by the laws of the EU, designers should apply for a patent at the earliest possible opportunity to avoid any rejection of protection on the basis that the design is no longer ‘new’.

If you have any questions or need any Intellectual Property advice, get in touch with our team