Netherlands jurisdiction report: Crocs shedding tears after ruling

Over the past decade the clogs have been the subject of multiple court cases in the Netherlands. Crocs invoked its copyright, design and trademark against several competitors, but following the EU General Court’s decision in March, the shoe maker can no longer rely on its Community design.

In 2013, French company Gifi Diffusion filed an application for a declaration of invalidity of the well-known clogs known as Crocs with the EU Intellectual Property Office (EUIPO). It claimed that the design of Crocs lacked novelty.

The design was allegedly disclosed more than 12 months before the priority date. Gifi based its claim on three different prior disclosures of the Crocs design:

Exhibition at a boat show in Fort Lauderdale, Florida;

The sale of 10,000 pairs of clogs; and

Disclosure on the applicant’s website.

The General Court decided that whether events taking place outside the EU could reasonably have become known to the persons forming part of the circles specialised in the sector concerned must be determined on the basis of the particular circumstances of each individual case. This case-by-case approach was then applied to the facts of the Crocs case.

The court held that in this case it was possible for the sector concerned to be aware of the events constituting disclosure.

Arguments for the ruling were that the events took place at the Fort Lauderdale Boat show in Florida, which is an important international fair in the nautical sector. Therefore, it was possible that professionals of the footwear industry, also from the EU, would attend the fair.

The court ruled that the applicant’s argument that the clogs were for sale only in Florida and Colorado was incorrect.