Crocs’ Classic Clog Faces Trademark Turmoil Over Missed ITC Deadline

[1]

In June 2003, inventor Scott Seamans filed a utility patent for his Breathable Footwear Pieces and assigned the rights to Crocs, Inc.[2] The patent described a gap in the market for comfortable footwear in the workplace; Seamans’ patent sought to fill this need by creating footwear that was comfortable, secure, and waterproof for use in a variety of work environments.[3] A year later, Seamans filed a design patent to protect the design features of the Croc shoe.[4] The design patent illustrated the unique elements of the Crocs shoe which included a strap across the back of the shoe, thirteen holes along the top of the shoe, and seven along the side.[5] These features were explicitly listed in 3D Trademark, Registration No. 5,273,875, which identified the strap as textured and the holes along the side as “trapezoidal openings”.[6]

A design patent and trademark protect different things. A design patent protects the ornamental appearance of a product for a limited term, while a trademark or trade dress protects only those nonfunctional features that identify the product’s source in minds of the consumers.[7] Thus, the expiration of Crocs’ design patent did not automatically end all possible protection for the shoe’s appearance; it simply meant that any continuing protection had to come from trademark law, not patent law.

On March 28, 2020, Crocs’ design patent expired.[8] This expiration placed the patented design features into the public domain and forced Crocs to rely on its trademarks, rather than its patent, to protect its comfortable, secure, and waterproof shoes.[9]

Factual Background

Alongside its Trademark No. 5,273,875, Crocs owns Trademark No. 5,149,328, another 3D trademark that identifies the elements of its “Classic Clog” shoe.[10] In July 2021, Crocs filed a complaint with the International Trade Commission (“ITC”) under Section 337 of the Tariff Act of 1930, alleging respondents diluted and infringed its trademarks (namely Nos. 5,273,875 and 5,149,328) to the extent of “substantially injur[ing] an industry in the United States.”[11] The alleged conduct included the importation into the United States of footwear that infringed on Crocs’ trademarks.[12] To remedy this infringement, Crocs sought a general exclusion order (“GEO”).[13] A GEO is an order issued by the ITC and enforced by the U.S. Customs and Border Patrol that bars importation of all “violative products, regardless of source.”[14]

Crocs’ original ITC complaint accused several companies of engaging in acts that violated Section 337; however, following several settlements and default notices, the complaint pertained only to the following active respondents: Orly Shoe Corp., Hobby Lobby Stores, and Quanzhou ZhengDe Network Corp.[15] In 2022, the remaining three respondents were subject to an evidentiary hearing before Administrative Law Judge Bryan F. Moore.[16] Months later, Judge Moore found in favor of the active respondents, stating that there was no violation of Section 337.[17] He also ruled in favor of those in default, finding that Crocs had waived its ability to bring trademark infringement complaints against them.[18]At the hearing, Crocs had failed to prove infringement of Trademark Nos. 5,273,875 and 5,149,328.[19]

International Trade Commission Review

In April 2023, the ITC reviewed Judge Moore’s initial determination and issued its final determination in September 2023.[20] This split determination both favored and disfavored Crocs.[21] In a ruling that affirmed Judge Moore’s determination, the ITC found that there was no Section 337 violation by the active respondents.[22] The ITC reasoned that the overall shape of a clog is not entitled to trademark protection as it is generic. [23] The marks can protect certain elements, such as the pattern of the holes, but they do not encompass the shoe’s overall look.[24]

In dissent, ITC Commissioner Jason Kearns found that the non-Crocs clogs did infringe on Crocs’ trademarks because the active respondents incorporated “essential and distinguishing design features critical to the overall look of the Crocs Classic Clog.”[25] Commissioner Kearns also relied on testimony from Respondent Orly’s own former COO, who confused his company’s footwear with Crocs’ shoes during his deposition.[26] Against the respondents in default, the ITC issued a limited exclusion order.[27] A limited exclusion order bars the importation of products by specific respondents pursuant to Section 337.[28] 

Missed Deadline

In December 2023, Crocs filed an appeal challenging the ITC’s determination of no violation of Section 337 as well as its decision to issue a limited exclusion order, as opposed to a general exclusion order.[29] Crocs argued that this was a timely appeal, as the ITC determination was not final until the sixty-day presidential review period had elapsed.[30] The dispute arose over the language in the decision.[31] Crocs understood that it was entitled to the sixty-day presidential review period in addition to the sixty-day limit to file an appeal.[32] Crocs relied on the ITC issuance of a limited exclusion order against the defaulting respondents; therefore, it believed the decision was not final until the initial sixty days had elapsed.[33] The ITC, on the other hand, argued that Crocs had missed the appeal deadline because the determination was immediately final; there was no statutory presidential review period, as such a period only applies to instances of Section 337 violations.[34] Because the ITC found that the active respondents did not violate Section 337, the Federal Circuit dismissed Crocs’ appeal as untimely.[35]

Legal Implications

Misinterpreting an appeal deadline can have severe legal consequences. [36] Accordingly, it is important for attorneys to confirm their understanding of deadlines and look to applicable case law when interpreting deadlines. [37] When unsure, relying on a conservative approach is probably best.[38]

References

[1] Photo by 1MilliKarat, A Group of Shoes, Unsplash (Sep. 5, 2022), https://unsplash.com/photos/a-group-of-shoes-doWWh6i5t_o

[2] See U.S. Patent No. 6,993,858 B2 (filed June 23, 2003).

[3] See id. 

[4] See U.S. Patent No. D517,789 (filed Mar. 28, 2004).

[5] See id.

[6] See U.S. Trademark Reg. No. 5,273,875, (registered Aug. 29, 2017).

[7] See 35 U.S.C § 171 (“Whoever invents any new, original and ornamental design for an article of manufacture may obtain a patent therefor, subject to the conditions and requirements of this title.”); see also 15 U.S.C. § 1125(a)(3).

[8] See Patent No. US D517,789 S, supra note 4, at 1. https://patentimages.storage.googleapis.com/ee/de/a7/4ba1311493756d/USD517789.pdf, (last visited Apr. 6, 2026).

[9] See Corrected Br. of Amici Curiae Hobby Lobby Stores, Inc. & Orly Shoe Corp. in Support of Appellee and Affirmance at 1-2, Crocs, Inc v. Int’l Trade Comm’n, No. 24-13000 (Fed. Cir. Oct. 2, 2024),  https://fedcircuitblog.com/wp-content/uploads/2025/10/CORRECTED-BRIEF-OF-AMICI-CURIAE-HOBBY-LOBBY-STORES-INC.-AND-ORLY-SHOE-CORP.-IN-SUPPORT-OF-APPELLEE-AND-AFFIRMANCE-.pdf, (last visited Apr. 6, 2026).

[10] See Crocs, Inc. v. Int’m Trade Comm’n, 163 F.4th 1374, 1376–77 (Fed. Cir. 2026).

[11] See id.

[12] See id.

[13] See id.

[14] See Defining Moments (Trade Terms and Practices, Briefly Defined): Exclusion Order, U.S. Int’l Trade Comm’n (Mar. 7, 2026), https://www.usitc.gov/press_room/defining_moment_exclusion_order

[15] https://assets.law360news.com/1729000/1729891/1270%20public%20comm'n%20opinion.pdf

[16] See Derrick Carman, An Instructive Reminder on Appealing ITC Determinations, Law360 (Feb. 18, 2026), https://www.law360.com/articles/2441488/an-instructive-reminder-on-appealing-itc-determinations.

[17] See id.

[18] See id.

[19] See id.

[20] See id.

[21] See id.

[22] See id.

[23] See Andrew Karpan, ITC Says Crocs Took Clogs TMs Too Far, Law360 (Oct. 6, 2023), https://www.law360.com/articles/1729891/itc-says-crocs-took-clogs-tms-too-far

[24]See Ivan Moreno, Crocs Urges Fed. Circ. To Reverse ITC Clog Import Ruling, Law360 (Nov. 6, 2025), https://www.law360.com/articles/2408567

[25] See id.

[26] See id.

[27] See Carman, supra note 15.

[28] See Karpan, supra note 13.

[29] See Carman supra note 15.

[30] See Karpan, supra 22.

[31] See id.

[32] See Carman, supra note 15.

[33] See id.

[34] See id.

[35] See id.

[36] See id.

[37] See id.

[38] See id.