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  • Writer's pictureFroese Law

Crocs Case Confirms Industrial Design as Tool in Fashion Law

Updated: Jun 21, 2023

Crocs had an important legal win in 2022 in Canada with respect to asserting its industrial design rights. This is a notable case as fashion law cases are rarely adjudicated in Canadian courts and it confirms that industrial design rights have legal clout.

What are Industrial Designs?

Industrial design is a type of intellectual property that is statutorily governed in Canada. Industrial designs protect utilitarian objects that are aesthetically pleasing. Industrial design protection in Canada is only granted if the industrial design is registered. At that point, the rights owner holds the exclusive right to make, use or sell the design in Canada for 10 years. To date, industrial design cases have been relatively dormant in Canada.

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What is the Background of the Crocs Case?

The dispute centers around the right to manufacture and sell fleece lined clog shoes. Crocs obtained an industrial design registration of its rendition of fleece-lined clog shoes in 2008. Double Diamond, the defendant, had been selling similar product in Canada since 2008. Crocs laid claim against Double Diamond for industrial design infringement. Double Diamond disputed the claim seeking to invalidate Crocs industrial design registration for lacking originality and that its design was solely dictated by functionality.

What was the Legal Analysis?

The crux of the matter was determining whether Crocs industrial design registration was valid and, if yes, did Double Diamonds product infringe those rights. As such, the following analysis was taken:

  • What prior art existed and to what extent did Crocs’ design differentiate from those prior designs?

  • Did Crocs’ design contain utilitarian functions or any primary methods of manufacture or construction?

  • Analyze the claims made in the industrial design registration to determine the scope of Crocs’ protection.

  • Conduct a comparative analysis of Crocs’ design with the alleged infringing design.

The above analysis was taken from the perspective of an informed consumer who is familiar with the relevant market and prior art.

What was the Decision?

Ultimately, Double Diamond’s product was deemed to infringe Crocs’ design rights. Double Diamond was required to disgorge to Crocs their gross sales.

What is the Takeaway?

This confirms that amassing an intellectual property portfolio is a key step in asserting your rights and competitive advantage in the marketplace. Moreover, it confirms that in Canada, investing in industrial design protection is a wise strategic play.

If you would like assistance on industrial design protection, reach out to us at Froese Law.

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