When a strap is not enough: General Court upholds invalidity of Crocs' iconic clog design
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Marcel Pemsel
May 31, 2026, 12:10:42 PM (8 days ago) May 31
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When a strap is not enough: General Court upholds invalidity of Crocs' iconic clog design
Can the addition of a heel strap to a clog design be enough to
produce a different overall impression on the informed user when that
strap belongs to one of the most recognisable shoes in the world? The
General Court's judgment in Crocs v EUIPO - Gor Factory (Chaussure) (T-228/25) sheds light on this question.
Background
Crocs, Inc. owns the following EU design registered on 22 November 2004, claiming a priority date of 28 May 2004, for "footwear" in Locarno class 02-04. The design depicts the well-known Crocs clog in seven views.
In
October 2022, Gor Factory, SA filed an application for a declaration of
invalidity, alleging that the contested design lacked individual
character under Artt. 25(1)(b), 4(1), 6 CDR.
The prior design relied upon was that of the "Holey Soles" clogs, which
had been made available to the public on 13 and 14 April 2003, i.e.
before Crocs' priority date.
The
Invalidity Division of the European Union Intellectual Property Office
("EUIPO") upheld the application, finding that the contested design
lacked individual character. The EUIPO's Board of Appeal ("BoA")
dismissed Crocs' appeal, confirming that the designs at issue produce
the same overall impression on the informed user. Crocs filed an action
with the General Court.
The General Court's decision
The General Court dismissed the action.
The Court recalled the standard four-stage examination for assessing individual character: (1) determining the sector to which the products belong; (2) determining the informed user, their awareness of the prior art and level of attention; (3) determining the designer's degree of freedom and (4) comparing the overall impressions.
1. Sector and informed user
The judges confirmed that the sector concerned was footwear and more specifically clogs. The informed user was held to pay a relatively high degree of attention when using clogs.
2. Designer's degree of freedom
Crocs argued that the designer's freedom was "medium at best", constrained by the fundamental features of a clog, namely the round shape, open back and relatively flat sole.
The Court disagreed and upheld the BoA's finding of a high degree of design freedom. The judges referred to case law, according to which the degree of the designer’s freedom is high or very high where various configurations could be imagined for the same product, where the product may be made in a very wide variety of shapes, colours or materials, where the description of the product concerned is very wide, containing no detail as to its type or its functionality, or where the constraints of a functional nature concerning the presence of certain essential elements are not liable to affect to a significant extent the form or overall appearance of the product, which may take various forms and be arranged in various ways.
The judges held that, while a clog must follow foot ergonomics and incorporate a robust sole and upper cover, the designer remains free to choose the material, colour, patterns, decorative elements and the presence, number, size, shape and position of holes and cutouts.
The degree of freedom was therefore correctly assessed as high.
3. Comparison of overall impressions
The BoA had found that both designs depicted a clog with exactly the same shape, featuring a thick sole, a rounded closed toe cap, an identical arrangement of circular holes on the upper surface and trapezoidal cutouts on the front and side. They differed only in the presence of a heel strap in the contested design, which the BoA did not consider to create a different overall impression.
The Court upheld the BoA's finding that the heel strap, while certainly noticed by an informed user, was of lesser importance given the overall identical shape of the designs. An informed user might regard the contested design as merely an alternative version of the prior design, with the strap constituting a minor variation. This was reinforced by the fact that a heel strap is an incidental feature of a clog.
a. Design choices not decisive
Crocs emphasised the specific design choices made for the strap – its chunky, tapered form, rolled edges and large rivets – and argued that the designer exercised broad creative freedom, which should give the contested design individual character. The Court recalled that the designer's degree of freedom is a factor that moderates the assessment of individual character but cannot on its own determine how different two designs have to be to produce a different overall impression.
Given the identity of all other features, the freedom exercised in respect of the strap was insufficient to produce a different overall impression.
b. Renown of the Crocs
Crocs invoked the inclusion of its shoe in the Design Museum's publication "Fifty Shoes that Changed the World". The Court held that such a fact gives no indication as to the overall impression produced on an informed user and is not a relevant factor in assessing the individual character. The design process, the commercial success of the products in which the design is incorporated, the renown of those products and the contribution of the contested design to the sector concerned are not relevant criteria.
c. The heel strap as the "most important" feature for use
Crocs argued that an informed user puts on the clog by fitting the strap to the heel and therefore regards it as the most important feature. The Court acknowledged that the overall impression must be determined in light of normal use, with attention focused on the most visible and most important elements. The judges also accepted that the heel strap is intended to prevent feet from slipping and that it is likely to be manipulated when someone puts on or takes off the clog. However, it was still deemed an incidental element and would not detract the attention of the informed user from the thick sole and the rounded toe cap.
Comment
The key takeaways from the decision:
1. Attempts to argue that the scope of the designer's freedom is limited are often futile. Unless there are significant technical restrictions, designers are free to design the product as they wish. This results in a high level of design freedom.
2. If you add a new feature to an already existing design, which is reproduced identically in the new design, the chances are that the feature is not sufficient to produce a different overall impression, unless the new feature stands out significantly and is not "incidental", as the General Court put it.
This also means that product variations should be registered at the same time and not subsequently since the first design might constitute prior art to the later variations.
3. The decision is a double-edged sword. While it may make the protection of new designs more difficult, it also expands the scope of protection of registered or unregistered designs because the test for the same overall impression is identical in prosecution and infringement proceedings.
The General Court's decision
The General Court dismissed the action.
The Court recalled the standard four-stage examination for assessing individual character: (1) determining the sector to which the products belong; (2) determining the informed user, their awareness of the prior art and level of attention; (3) determining the designer's degree of freedom and (4) comparing the overall impressions.
1. Sector and informed user
The judges confirmed that the sector concerned was footwear and more specifically clogs. The informed user was held to pay a relatively high degree of attention when using clogs.
2. Designer's degree of freedom
Crocs argued that the designer's freedom was "medium at best", constrained by the fundamental features of a clog, namely the round shape, open back and relatively flat sole.
The Court disagreed and upheld the BoA's finding of a high degree of design freedom. The judges referred to case law, according to which the degree of the designer’s freedom is high or very high where various configurations could be imagined for the same product, where the product may be made in a very wide variety of shapes, colours or materials, where the description of the product concerned is very wide, containing no detail as to its type or its functionality, or where the constraints of a functional nature concerning the presence of certain essential elements are not liable to affect to a significant extent the form or overall appearance of the product, which may take various forms and be arranged in various ways.
The judges held that, while a clog must follow foot ergonomics and incorporate a robust sole and upper cover, the designer remains free to choose the material, colour, patterns, decorative elements and the presence, number, size, shape and position of holes and cutouts.
The degree of freedom was therefore correctly assessed as high.
3. Comparison of overall impressions
The BoA had found that both designs depicted a clog with exactly the same shape, featuring a thick sole, a rounded closed toe cap, an identical arrangement of circular holes on the upper surface and trapezoidal cutouts on the front and side. They differed only in the presence of a heel strap in the contested design, which the BoA did not consider to create a different overall impression.
The Court upheld the BoA's finding that the heel strap, while certainly noticed by an informed user, was of lesser importance given the overall identical shape of the designs. An informed user might regard the contested design as merely an alternative version of the prior design, with the strap constituting a minor variation. This was reinforced by the fact that a heel strap is an incidental feature of a clog.
a. Design choices not decisive
Crocs emphasised the specific design choices made for the strap – its chunky, tapered form, rolled edges and large rivets – and argued that the designer exercised broad creative freedom, which should give the contested design individual character. The Court recalled that the designer's degree of freedom is a factor that moderates the assessment of individual character but cannot on its own determine how different two designs have to be to produce a different overall impression.
Given the identity of all other features, the freedom exercised in respect of the strap was insufficient to produce a different overall impression.
b. Renown of the Crocs
Crocs invoked the inclusion of its shoe in the Design Museum's publication "Fifty Shoes that Changed the World". The Court held that such a fact gives no indication as to the overall impression produced on an informed user and is not a relevant factor in assessing the individual character. The design process, the commercial success of the products in which the design is incorporated, the renown of those products and the contribution of the contested design to the sector concerned are not relevant criteria.
c. The heel strap as the "most important" feature for use
Crocs argued that an informed user puts on the clog by fitting the strap to the heel and therefore regards it as the most important feature. The Court acknowledged that the overall impression must be determined in light of normal use, with attention focused on the most visible and most important elements. The judges also accepted that the heel strap is intended to prevent feet from slipping and that it is likely to be manipulated when someone puts on or takes off the clog. However, it was still deemed an incidental element and would not detract the attention of the informed user from the thick sole and the rounded toe cap.
Comment
The key takeaways from the decision:
1. Attempts to argue that the scope of the designer's freedom is limited are often futile. Unless there are significant technical restrictions, designers are free to design the product as they wish. This results in a high level of design freedom.
2. If you add a new feature to an already existing design, which is reproduced identically in the new design, the chances are that the feature is not sufficient to produce a different overall impression, unless the new feature stands out significantly and is not "incidental", as the General Court put it.
This also means that product variations should be registered at the same time and not subsequently since the first design might constitute prior art to the later variations.
3. The decision is a double-edged sword. While it may make the protection of new designs more difficult, it also expands the scope of protection of registered or unregistered designs because the test for the same overall impression is identical in prosecution and infringement proceedings.
4.
Design law does not care for aesthetics and commercial success. No
matter how many awards a designed product received or how often it was
sold, it is held to the same standards as any other design.
5.
Decisions in design (and trade mark) matters can be surprising. Finding
that a heel strap in the size of that in the contested design, which
has important functions for the informed user, is merely incidental
seems quite a stretch.
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