Crocs has been handed a loss in its bid to invalidate a design registration owned by a German footwear company on the basis that its footwear is too similar to shoes from its own Hey Dude brand. In a decision in March, the European Union Intellectual Property Office (“EUIPO”)’s Board of Appeal rejected Crocs’ claim that Laufsteg München International Brands GmbH’s “copycat” design is too similar to earlier Hey Dude shoe models, affirming that the contested Laufsteg design possesses individual character and meets the threshold for novelty – even in a crowded slip-on shoe category.
The Background in Brief: Crocs launched invalidation proceedings with the EUIPO in 2023, seeking to wipe out Laufsteg’s Registered Community Design (RCD No. 8 784 797-0003). According to Crocs, the Laufsteg registration is invalid, as the design at the center of the registration – a casual moccasin-style shoe – closely resembles earlier Hey Dude models and thus, lacks the novelty and individual character required under EU design law.
Crocs, which acquired Hey Dude in 2022, argued that the Laufsteg design mirrors two earlier Hey Dude products: “Wendy Chambray Peach” and “Wendy Boho White Crochet.”
Design Differences = Different Impression
Setting the stage in its decision, the EUIPO Board of Appeal accepted that the Wendy Chambray Peach design was made publicly available prior to Laufsteg’s filing to register the contested design, citing catalogs and Amazon listings as sufficient proof. In terms of the Wendy Boho White Crochet model, while the Board expressed doubts about the reliability of Crocs’ evidence – including a YouTube video and social media posts, it ultimately assumed, in Crocs’ favor, that it was similarly disclosed before the contested filing. However, even with that assumption, Crocs’ cancellation bid failed.
Central to the Board’s decision is its determination that the contested Laufsteg design and the earlier Hey Dude models created a different overall impression. While all three shoes share a laid-back, moccasin-like silhouette, the Board highlighted several differentiating features: the heel design, embroidery pattern, eyelet structure, and sole shape. These design differences are sufficient to impart a “sportier” look to the contested design, according to the Board, thereby, contrasting with the more “elegant” feel of Crocs’ Hey Dude models.
The Board emphasized that even subtle variations may influence the perception of an “informed user,” especially when design freedom is high. In the fashion and footwear industries – where designers enjoy a wide degree of freedom in crafting their designs – such differences can tip the scale.
Because the contested design was deemed to have individual character, the Board concluded that it was also novel under Article 5 of the Community Design Regulation. Against that background, Crocs’ appeal was dismissed on both grounds, and the company was ordered to pay the costs of the proceedings.
THE TAKEAWAY: The Board’s decision reinforces the EUIPO’s position that small design differences in fashion-related goods can have outsized legal significance. Crocs’ loss in this round (which it can appeal) drives home the point that even in a saturated market like slip-on casual footwear, design registrations can hold up – if their visual identity is sufficiently distinct.
Beyond the implications for Crocs, the outcome at the Board level – paired with other recent decisions that have stopped footwear companies from successfully claiming rights in their designs (a loss for Birkenstock in February and a separate setback for Crocs in which the EUIPO Board of Appeal declared the invalidity of one of its designs come to mind) – is likely to raise questions about the limits of enforceability of certain footwear styles and goods in other design-heavy categories.
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