You should have seen these


While a couple of lawsuits have been settled, the wrangling between Crocs and other shoemakers is playing out in US federal court, the International Trade Commission, Australia and even the OHIM.

Crocs battle to protect patents and designs and other IP rights to their famous plastic shoes. Respondents claim that their shoes use different materials, have unique designs and that Crocs' patents and designs are invalid because the shoe allegedly was invented by Ettore Battiston, not Crocs co-founder Scott Seamans.

In a deposition, Seamans said he was aware of a "Battiston Aqua Clog," a strapless closed-cell resin shoe was sold in 2001. The "aquaclog" was a name used by Canadian company Foam Creations.

"Crocs Inc. now owns Foam Creations and the aquaclog is no longer sold," (Crocs’ spokeswoman). "The Seamans’ invention is the Beach clog as it exists today. The patent is absolutely valid."

They thus say they feel confident that Crocs is taking strides to battle companies that have launched copycat shoes.

On the other hand, on Crocs’ main competitor website, it can be read:

“Just as the United States has the saga of Steve Jobs starting the now-famous Apple company in his friend’s garage, Canada’s Holey Soles had a similar unpretentious start. A Vancouver psychologist, in late 2002, used her garage to begin a business distributing and selling a comfy-but-ugly neon-bright foam clog. By the end of 2006, Holey Soles had gross sales of close to $10 million, with no end in sight.

Holey Soles first sourced its products from Quebec manufacturer Finproject (later to become Foam Creations Inc). The Quebec company had been selling its injection-molded foam clog since 2001 to businesses in Canada and the United States. Among these were the Canadian company Holey Soles, and Western Brands LLC (later to become Crocs Inc) from Colorado, USA.

Of the companies selling the Foam Creations clog, the U.S.-based Western Brands LLC soon gained profile. They added a pivoting strap to the Foam Creations clog, christened it “crocs” and sold it in fall-winter 2002. The American company sensed a business opportunity, and moved aggressively to secure its supply by purchasing the Canadian manufacturer Foam Creations Inc. in 2004.

The foam clogs being sold in the US and Canada had been identical to this point aside from the addition of a pivoting strap for the U.S. shoes sold by Western Brands. The shoe that the US company called ‘crocs’, Holey Soles called their ‘Holey Soles’ model. However, Western Brands was crowding out Holey Soles on the Foam Creations supply chain.

Both Holey Soles and Western Brands had originally been selling essentially the same shoe manufactured by FinProject. However, Western Brands reorganized in January 2005 to become Crocs Inc and adopted an ambitious growth strategy. It called for aggressive initiation of legal actions against competitors, even where the merits of the case were dubious. Weak and struggling companies could be expected to fold under the pressure and costs of litigation.”

It seems that actions are still pending in the US, in Canada, in Australia and in... Europe.

As to OHIM (he Office for Harmonization in the Internal Market), two recent decisions are to be noted:

1°) Crocs’ Community design has been found invalid since it lacks individual character (decision of the Invalidity Division of December 5, 2007). The applicant of the cancellation action was Casper V Sport, a Danish company marketing “Cayman style clog” (sharing the same ugly style).

2°) A few days after (December 12, 2007) the same OHIM’ division has cancelled the Holey Soles’ Community design application… based on a Crocs’ prior shoes.

As to the substance of the case, the Examiners have staed that :

“The informed user is familiar with the clog footwear to which the RCD relates. He is aware of the requirements that such a type of footwear must fulfill in order to perform its function as a clog and of the prior art known to the circles specialized in the sector concerned. In particular, he takes into account that the degree of freedom of the designer is limited by the requirement that such a clog must have a sole and an upper and may also have a strap, which all serve to protect the foot and provide stability to it. All these parts must be adapted to the shape of the human foot and its instep. In consequence, the informed user will pay more attention to the features where the designer was not limited in his creativity, such as the shape of the sole and the heel as well as the shape and configuration of the upper part of the upper, inclusion of a strap and especially to their decorative elements.

Pursuant to Article 6 CDR the overall impression produced on the informed user by the RCD must be assessed by comparison with the overall impression produced on such a user by a prior design cited, wherein the attention is focused on the shape of the design as a whole.

The RCD and the prior designs all have the same general shape of the clog with the same proportions and almost the same configuration. Because the general shape of the clog and its main parts prevail in the overall impression of the clog design, the two designs with the same general shape and almost the same configuration of the upper with strap, the sole and the heel produce the same overall impression on the informed user. Considering the fairly unlimited freedom of the designer in developing the design of the clog, the differences in the presence or absence of the smaller holes on the top surface of the upper and the features of the bottom surface of the sole, and in the colours of the clog, which has a simple overall shape do not render the overall impression produced on the informed user by the RCD different from the overall impressions produced on the informed user by the prior designs.

Therefore, the RCD lacks individual character.”

And this dispute is not settled. The question being: who owns a monopoly on ugliness....