Last week, just days after Crocs announced several new patents on its footwear designs, the company filed a broad patent and trade dress infringement lawsuit claiming that at least 20 different defendants are illegally copying Crocs design. Specifically, the suit names brands like Holey Soles, NothinZ, Airwalk, Gators footwear, Veg footwear, Komodo sandals, Eva Clogs, Easy Clogs, Sunsurfer shoes, and ten other unknown “DOE” companies who manufacture shoes sold in Wal-Mart, K-Mart, Sears, and Famous Footwear.
Crocs was formed in July 2002, when its founders decided to market a shoe developed and manufactured by a third party, Foam Creations, Inc., based in Canada. In November 2002, Crocs introduced Foam Creations first model, originally intended as a boating or outdoor shoe. In 2003-2004, Crocs expanded its product line, acquired Foam Creations, and added warehouses and shipping programs. Before Crocs acquired Foam Creations, the Canadian manufacturer was also selling this same type of shoe to several other companies, some of whom are named in the lawsuit, including Holey Soles.
The trade dress lawsuit is claiming that several aspects of Crocs footwear are trademarked. These include a distinctive tread pattern; a distinctive pattern of holes on the horizontal portion of the upper; a distinctive pattern of holes on the vertical portion of the upper; a pattern of raised nubs in the foot bed; and even a distinctive one-color design. Crocs claims that this “Trade Dress is non-functional and serves to distinguish Crocs shoes from competitive products. The Crocs Trade Dress is ornamental and has no utilitarian advantage.”
The other aspect of the lawsuit pertaining to patent infringement claims that these competitors violated Crocs recently acquired “858 patent.” This patent makes two claims. This first involves a footwear piece formed as a single part manufactured from a moldable foam material, a pivoting strap, an open rear region, and an upper region that “follows the contour of a human foot.” Claim two involves a decorative pattern of bumps in the upper, aseveral ventilation holes, and a sole that includes tread patterns among other features.
Crocs is asking for the defendants profits after accounting, actual damages resulting from the defendants unfair competition, a permanent injunction, and all of its litigation expenses, including without limitation, its reasonable attorneys fees and costs.
