International Trade Commission votes to investigate Crocs complaint over Copycat clogs

The United States International Trade Commission will initiate an investigation into the importation and subsequent sale in the United States of footwear and packaging that allegedly violates Crocs protected offerings. The shoe company, whose foam clogs have gained popularity amid the COVID-19 pandemic, filed a complaint with the ITC in June, saying that two dozen companies – from Skechers to Loeffler Randall – engage in the illegal importation and sale of “certain footwear products and packaging that violates the trademarks used in connection with certain Crocs footwear”, including Crocs’ trademark rights in its word mark “CROCS” , as well as the 3D design of his famous shoes.

In a July 6 Notice of investigative body, the ITC revealed that it had voted to open an investigation to determine whether the companies named by Crocs, including Skechers, Hobby Lobby, Loeffler Randall and 20 others, were in fact importing into the United States and were selling the trademark infringing goods in violation of Section 337 of the Tariff Act of 1930, and if they violate the Tariff Act “by reason of misrepresentation of source or dilution of the mark” in connection with the like products, thereby creating “a threat or effect… [of] destroy[ing] or cause substantial injury to any industry in the United States. In this context, the ITC states that it will examine “the plain language description of the accused products or category of products, which defines the scope of the investigation”, namely “sports shoes with holes in the upper and packaging of these shoes.”

Initiating the case in June through a 175-page complaint, Crocs claimed that while there are “a virtually endless number of different, non-infringing shoe styles today,” and that “all competitive need to use Crocs marks in commerce”, a number of competitors began to “intentionally and frequently” reproduce its “unique and recognizable” shoes. The allegedly copied products are “not due to competitive need,” claims the Colorado-based shoe company, “but because of the significant goodwill that Crocs brands have accumulated over the past two decades when used by Fangs”.

Due to such widespread “intentional” infringement, which is likely to confuse consumers as to the source of unauthorized products, and which “will continue to cause substantial harm to Crocs, including at least substantial customer base and reputation for quality associated with [its trademarks]”, Crocs has applied for a general exclusion order to exclude from entry into the United States” all imported footwear that violates Crocs’ rights in [its] marks claimed”. More than that, Crocs is also seeking cease and desist orders directing the respondents “to cease the importation, marketing, advertising, demonstration, stockpiling of inventory for distribution, sale and use of articles imported into the United States”.

Within the next 45 days, the ITC will issue an order setting the timeline for the proceedings and the target date for the conclusion of the investigation – with the administrative judge “necessary to make a first decision on the breach and a recommended decision on remedy, bail and public interest at least four months before the target date. If ITC were to finally side with Crocs, it wouldn’t be the first time. In July 2011, more than 5 years after Crocs launched an ITC case regarding the import and sale of imitation shoes, the trade organization has strictly prohibited 11 companies from importing and selling shoes that infringe two of Crocs’ design patents. Crocs on the grounds that they were engaged in the “unlawful importation and sale of certain foam footwear” which infringed Crocs patents.

The case is In the Matter of Certain: Casual Footwear and Packaging Of Their, 3551 (ITC).