Crocs Secures the Invalidation of a Lookalike Clog Design Lacking Individual Character

1. The Parties and the Background of the Dispute

The US company Crocs, Inc., represented by Fieldfisher (Belgium), filed before the European Union Intellectual Property Office (EUIPO) an application for a declaration of invalidity against the Registered Community Design No. 015073207-0001, filed on 16 September 2024 by FLAMEshoes Slovakia s.r.o. for products in class 02-04 “footwear”.

The contested design depicted a pair of blue foam clogs featuring a perforated upper and a pivoting heel strap, a configuration strikingly similar to Crocs’ iconic footwear.

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2. Legal Grounds of the Invalidity Application

Crocs relied on Article 25(1)(b) of the Community Design Regulation (Regulation (EC) No. 6/2002), now replaced by Regulation (EU) 2024/2822, in conjunction with Articles 4(1) and 6(1)(b), arguing that the contested design lacked individual character, since it produced the same overall impression on the informed user as Crocs’ earlier design No. 015001456-0001, published on 14 November 2022.

The holder, FLAMEshoes Slovakia, contended that the earlier design had not been “made available to the public” within the meaning of Article 7 EUDR, as its publication in the EUIPO Designs Bulletin was not accompanied by any marketing or exhibition activity and therefore did not constitute disclosure.

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3. The EUIPO’s Assessment

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a) Disclosure of the Prior Design (Article 7 EUDR)

The EUIPO recalled that publication in the official bulletin of any intellectual property office constitutes disclosure within the meaning of Article 7(1), as previously held in the Umbrellas cases (T-22/13 and T-23/13).

Since Crocs’ prior design had been published on 14 November 2022, well before the filing of the contested design, it was deemed accessible to the circles specialised in the footwear sector within the European Union. The holder’s argument denying such disclosure was therefore dismissed.

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b) Individual Character (Article 6 EUDR)

The Office followed the well-established four-step test developed by EU case law:

1. Sector concerned – the products are foam clogs;
2. Informed user – a person familiar with existing designs of clogs, attentive to variations but not an expert;
3. Designer’s degree of freedom – considered high, limited only by ergonomic constraints (shape of the foot, stability, presence of a strap);
4. Comparison of overall impressions –

The EUIPO found that the two designs shared:

• an identical silhouette and proportions (rounded closed toe, slightly raised heel);
• a perforated upper with identical number and arrangement of holes;
• a pivoting heel strap attached by a circular rivet of the same dimensions and position;
• a similar blue colour, reinforcing visual equivalence.

From the standpoint of the informed user, these similarities led to the conclusion that the contested design produces no different overall impression compared with the earlier Crocs design. Minor variations were insufficient to alter the visual perception.

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4. The Decision

The EUIPO Invalidity Division held that:

• the conditions under Article 25(1)(b), read together with Articles 4(1) and 6(1)(b) EUDR, were met;
• the Registered Community Design No. 015073207-0001 was therefore declared invalid;
• the holder FLAMEshoes Slovakia s.r.o. was ordered to bear the costs, fixed at EUR 750.

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5. Significance and Commentary

This decision underscores the EUIPO’s continued vigilance against imitations of iconic product shapes, particularly in the footwear sector where the Crocs design has become emblematic.

It also confirms that publication alone in the EUIPO Designs Bulletin constitutes disclosure under Article 7 EUDR, without the need for commercial exploitation or exhibition.

Finally, it is reassuring that the European authority has shown firmness toward what clearly constitutes a form of fraud upon pre-existing industrial property rights. Such vigilance strengthens legal certainty and effective protection for legitimate right holders within the internal market.

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An appeal may be lodged before the EUIPO Boards of Appeal within two months from the notification of the decision.