Frédéric Glaize of the MARQUES Designs Team reports on the latest EU General Court judgment involving a Crocs design for footwear.

Crocs’ European design registrations have been in the spotlight of the European courts on several occasions (CJEU, C-320/18 P Crocs v EUIPO “Gifi Diffusion” of 10 September 2020; General Court, T-424/16, Crocs v EUIPO “Gifi Diffusion” of 14 March 2018; General Court, T-424/16, Gifi Diffusion v EUIPO “Crocs” of 14 March 2018).

One of the most recent developments is the judgment of the General Court in Case T-228/25, Crocs, Inc. v EUIPO. The case concerns invalidity proceedings regarding a registered European Union design for footwear. As is often the case, the dispute centred on the assessment of individual character.

The conflict: added features versus prior art

The design at issue was EU registration 000257001-0001, claiming priority from a foreign application dating back to 28 May 2004 (pictured right).

The prior art, which proved fatal to the registration, originated from a Wayback Machine webpage captured on 13 and 14 April 2003, displaying a perspective view of ‘Holey Soles’ clogs (pictured below).

The core of the discussion dealt with the impact of the presence of the heel strap in the contested design, as this feature was absent from the prior art.

The designer’s degree of freedom: unitary versus distributive assessment

Factors deemed relevant to the assessment of the overall impression, as part of the now classic four-stage examination test, include the designer’s degree of freedom. The degree of freedom is merely a factor to be taken into account when assessing individual character; it is not an independent requirement (paragraphs 51 and 52).

In this instance, the Board of Appeal (BoA) deemed the designer’s degree of freedom to be ‘high’, whereas Crocs contended it was ‘medium at best’ (paragraph 23). The Court upheld the BoA’s findings, noting that for clogs, the designer’s freedom is only restricted insofar as the shape must follow foot ergonomics, incorporating a robust sole and upper cover.

Beyond these functional constraints, the clog designer was free to choose, inter alia, the material, colour, patterns and decorative elements, as well as the presence, number, size, shape and position of the holes and cutouts.

While it is noteworthy that the BoA (paragraph 23) and the General Court (paragraph 31) distinguish between features limited by functional constraints and those where greater liberty exists, we feel the point remains inadequately addressed from a methodological perspective.

We would observe that the designer’s freedom, when assessed within the four-stage test, must be determined as a unitary and synthetic index. That is what the Court just did. But when the time comes to actually consider what the effect of the degree of freedom is on the perception of the informed user, then this degree is not a unitary index anymore: it is indeed applied in a distributive manner to different features.

This leads to a degree of dissonance when assessing individual character. At paragraph 34, the Court reiterated a common-sense approach: “(w)here the similarities between the designs at issue concern constraints of the features imposed by, inter alia, the technical function of the product or of an element of the product, those similarities will have only minor importance in the overall impression produced by those designs on an informed user”. (See also paragraph 53, confirming this distributive approach.)

In a similar vein, we note at paragraph 30 a citation of the principle previously mentioned in Case T-74/18, according to which the existence of “various configurations” is used as a self-sufficient factor to assess the impact of functional requirements.

However, we must point out two elements. First, since the Doceram ruling the former “multiplicity of forms” criterion was downgraded to a mere indication. Second, technical requirements which might impact the degree of freedom of the designer (Articles 6 and 10) and the technical function (Article 8.1) appear to stem from similar underlying legal preoccupations.

The strap as a “minor variation”

Comparing the designs, the BoA, followed by the Court, considered that both represented clogs sharing the exact same shape, including a thick sole, a rounded closed toe cap, and an identical arrangement of circular holes and trapezoidal cutouts. On this basis, the designs were found to produce the same overall impression on the informed user.

The designs differed only by the presence of a heel strap in the contested design (paragraph 42). This represents the crux of the case.

Interestingly, the Court found that while an informed user would certainly notice the strap, it was nonetheless an element of secondary importance given the identical overall shape of the designs.

Consequently, the informed user might perceive the contested design merely as an “alternative version” of the prior art, and the strap as a minor variation (paragraph 46). Critical observers may find the reference to “variations” somewhat striking, given that the criteria under Article 6 turn simply (in a more Boolean way) on whether the overall impression differs.

Commercial renown versus legal validity

The alleged importance of the strap as a distinctive feature was illustrated by Crocs via the clog’s inclusion in the Design Museum’s ‘Fifty Shoes that Changed the World’.

The Court was unmoved, reminding the applicant that the commercial success of the products, the renown they have acquired among amateurs, and the contribution of the design to the sector are not among the criteria taken into account for the purpose of assessing individual character (paragraph 46).

Conclusion: the hierarchy of features

Finally, the judgment takes into account a form of hierarchy of the design features. The design owner argued that the heel strap was significant, particularly because users would likely use their hands to fit and adjust it, unlike in the prior art clog.

However, the Court endorsed the BoA’s reasoning, finding the strap to be of lesser importance and incapable, in itself, of offsetting the strong similarities between the designs (paragraph 62). By contrast, the fundamental features of a clog were identified as “the rounded shape, open back and relatively flat sole” (paragraph 63), namely elements regarded as among the most visible and important in normal use (paragraph 64).

While the combination of known features may result in a valid design, as seen in the Deity Shoes decision, the added matter must possess sufficient visual weight. In this instance, the heel strap was treated as an incidental variation rather than as a feature capable of altering the overall impression.

Frédéric Glaize is a partner of Plasseraud IP and a member of the MARQUES Designs Team. The pictures in this blog post are taken from the court documents.

Jamie Watt and Simon Casinader of the MARQUES Copyright Team report on the results of the UK government consultation on copyright and AI.

The consultation

From 17 December 2024 to 25 February 2025 the UK government ran a consultation upon copyright and artificial intelligence. The consultation considered four government specified policy options on copyright and the training of artificial intelligence models, as well as various alternative approaches.

The four options proposed in the consultation were for the government to:

1. do nothing, and allow existing laws to remain in effect as currently drafted in relation to AI and copyright;
2. require licensing of rights under copyright in all cases;
3. create a broad text and data mining exception, allowing significant use of copyright works in the context of AI systems without rights holder permissions; and/or
4. create a text and data mining exception but coupled with an opt-out and processing transparency requirements.

In addition, the consultation also considered:

• the effect of copyright on access to, and use of, data by AI developers;
• transparency regarding access to, and use of, copyright works by AI developers, and about the outputs of AI systems;
• technical measures and standards that may be used to control access to, and use of, copyright works to develop AI systems;
• licensing of copyright works for AI development;
• enforcement of requirements and restrictions relating to the access to, and use of, copyright works to develop AI systems, and relating to their outputs; and
• computer-generated works and digital replicas

It was noted that the consultation could result in revisions to copyright law, and measures promoting transparency, promoting use and concerning licensing of copyright works.

In March 2026 the results of the consultation were published. They can be found here.

Factors considered in compiling the results

In compiling the results, the government recognised the effects of technology in allowing for new ways in which copyright works may be copied and communicated to the public. They also recognised the need to balance rights provided to creators with the public interest in allowing for exchange of information.

Specifically, they identified that AI can allow for greater information analysis and availability, but that AI systems would not work effectively without the presence of the results of human creativity. They further identified that AI systems can in some instances compete with the very creators that they learn from.

The government also identified a need to protect the UK’s creative economies, and to ensure fair reward for uses of resources creators may create. They noted uncertainties around how copyright and AI interacted, particularly in the case where autonomous agents may be involved, the growth of licensing regimes, ongoing development of technical standards and the presence of ongoing litigation in various jurisdictions. Particularly noted were gaps in available evidence.

What the report on the consultation said

A copyright exception for AI training

Responses (particularly those from the creative industries) generally indicated a rejection of a broad text and data mining exception, including where an opt-out would be provided. Certain respondents in the AI and research sector felt that such an approach would not achieve the aim of making the UK internationally competitive.

Noting the strong views expressed in the consultation and gaps in available evidence, the government noted that a broad copyright exception with an opt-out was no longer their preferred way forward. Instead, they proposed to “gather further evidence on how copyright laws are impacting the development and deployment of AI across the economy…consider and engage stakeholders on other potential policy approaches…[and to] continue to monitor developments in technology, litigation, international approaches, and the licensing market”.

In choosing this approach the government noted the importance of enabling the transformational benefits of AI whilst balancing this with the need to protect human creativity and the UK’s creative industries.

Transparency

Noting that some countries require AI developers to disclose training data sources, and that the majority of respondents favoured a similar approach, the government noted their agreement, however they proposed only to “continue monitoring the effects of transparency rules in other countries and consider [their] approach in the UK”.

In this context reference was made to working with a range of industry and other experts to develop best practice on transparency, but in a way which was proportionate and which would not involve unreasonable burdens, but which would promote clarity and enforcement for stakeholders of all sizes, without disincentivising AI development or deployment in the UK (including by non-UK developers).

Labelling of AI and human-created content

The government identified that the labelling of content to achieve clarity in the use of AI in its creation can affect people’s choices and protect against disinformation and harmful deepfakes. They also identified that no labelling obligations currently exist in the UK, but that there was a “relative consensus” which existed amongst respondents in favour of the “principle of labelling”.

As a result, the government proposed to “work with industry to explore best practice on labelling AI-generated content… continue monitoring international developments and…work with international partners to support the development of common solutions”.

In this, they noted the role of best practices in helping establish consumer confidence and public trust in AI outputs. In furthering goals in this respect they identified the importance of complementing not duplicating global processes and common international solutions.

Technical tools and standards

The government noted that technical tools and standards enable rights holders to express how their work can be accessed and used, helping them control and license their works. They also noted that the market for these tools is developing rapidly, and that on a general level tool development was supported (although respondents differed as regards the nature of any intervention required).

As such the government proposed “to keep the need for regulation of technical tools and standards under review… to continue to monitor international developments…[and]… to work with experts and industry to support best practice and adoption of market-led tools and standards”.

Licensing

Acknowledging that creators’ works are widely used to train AI models, and the importance of creator remuneration (particularly in creator incentivisation), the government identified that AI could provide a new revenue source for creators. Respondents generally felt that the government should not interfere in the licensing market, but rather (particularly in responses from the creative sector) that transparency was paramount – as transparency requirements would enable rights holders to better license and enforce rights.

As such the government proposed to “not to intervene in the licensing market at this stage [but] to monitor the market as it develops and…keep market-led approaches to licensing under review”. They also proposed “with regard to AI systems developed outside the UK…to continue monitoring global developments and judicial outcomes” and “to identify and assess further levers to support access to valuable datasets”, particularly through the Creative Content Exchange (CCE).

The CCE is a government-established marketplace to sell, buy, license and enable permitted access to digitised UK cultural institution creative assets and is intended to test a range of commercial models for licensing, with the aim of launching an operational pilot platform by Summer 2026.

Also noted was the power of AI to transform education by helping teachers focus on what they do best. In this respect the report stated that the UK’s Department for Education will continue to take forward its work to ensure the copyright framework allows the benefit of AI to be realised in education settings, and is now assessing a range of options, including to ensure pupil IP is used fairly.

Enforcement

Acknowledging that effective rights enforcement mechanisms were key to ensuring rights remained meaningful, and that AI posed particular challenges, the government stated that enforcement should be effective, accessible and proportionate, and that it was important to ensure that the UK retained a competitive enforcement framework.

With this in mind they proposed to “continue working with partners, including law enforcement and the judiciary, to help ensure the UK enforcement framework remains fit for purpose…[and] to identify and address enforcement barriers and consider where action to mitigate these barriers may be required”. They also proposed “to consider the case for and approach to regulatory oversight of transparency or other measures, if legislation across these is introduced”. However they did not propose the establishment of any new “AI regulator” at this time.

Computer-generated works

The results acknowledged that in the UK the possibility for protection for computer-generated works created without a human author already existed, under present legislation. Most respondents felt that works solely generated by AI should not attract copyright, and that this part of UK law should be amended accordingly.

The government identified a need to incentivise and protect human creativity, and with the responses in mind proposed a balance in removing this specific type of protection whilst allowing copyright to continue to protect works created with AI assistance.

Digital replicas

The government identified that AI made it easier to create digital replicas of someone’s voice or face, and that harm could be suffered where this took place without permission. They noted the presence of some legal protections, but that they did not cover all situations where a replica may be made without consent, and the presence of some support for enhanced protections (but that there was no single view in this respect).

They agreed that AI presented increasing risks for artists and the public and proposed “to explore a range of options for addressing these risks, while protecting the potential of this technology to support legitimate innovation [including] consideration of whether it would be beneficial to introduce a new digital replica or personality right”.

Specific actions

The report noted various specific actions to take place following the release of the report. These included:

• Monitoring important developments in the wider global market, particularly in the US where most AI models are trained, and as regards transparency rules in the EU and parts of the US, and new technical standards under development.
• Using commissioned research to understand the impact of copyright reform on the creative industries, and building the evidence base on the supply and demand of creative content for use in training, to help build a framework for quantifying the impacts of copyright reform on the creative industries and AI sectors.
• Evidence gathering on the effectiveness on protection tools and standards and how these support the creative industries, competitiveness and access to data.
• Collecting evidence on developers across the tech stack and the extent to which copyright affects business activity, focussing on areas of UK strength such as fine-tuning, application-layer development, and supporting this via stakeholder engagement, including with sector and industry bodies, to understand how developers source training data and deploy text and data mining solutions in practice, and how they may respond to different policy options.
• Compiling analyses and evidence on AI’s impact on the economy and labour market, tracking the pace and pattern of AI adoption across sectors, as well as surveying the extent to which copyright affects AI adoption.

Comment

Whilst the proposals are in many respects a statement of continuing to wait and see how things develop, that approach may be considered sensible with respect to a fast-moving market where things will change and develop rapidly over the next few years. Legislating at this time may not be sensible, given the market may very well differ by the time any legislation is drafted and enacted. The recognition of fitting in with global approaches is perhaps to be welcomed as the UK, its rights holders and its developers do not exist in a vacuum.

Whether this will ultimately be beneficial for rights holders remains to be seen; indeed whether a unified global approach is possible may also be perhaps somewhat questionable. Given the prevalence of development located in other countries – and given the multitude of US litigation and their notable differences in copyright law when compared with the UK, and the relevance of the territorial location processing and communication in recent UK litigation – one may consider that the UK’s approach could simply devolve to mirror that of their most important economic partners. However, whether this will be the case is simply guesswork at this point in time.

What is known is that the UK’s approach remains fluid, to an extent. Where some certainty appears to be creeping in can be seen in relation to specific key points, as follows. It is highly unlikely that the UK will enact a broad text and data mining exception to copyright, whether in a standalone form or coupled with an opt-out mechanism. In the meantime, existing restrictions and approaches, and enforcement mechanisms, will continue to apply. We may, however, see some change in relation to the UK’s approach to allowing protection of computer-generated works to exclude works generated wholly without human intervention. We may also see some sort of greater protection for image rights, in the context of AI in the UK.

For rights holders, this should be generally welcomed. The key message, though, for rights holders to take from this is the importance of engaging with their industry and trade bodies, to address specific issues and further the development and implementation of industry standard approaches/non-legislative rights protection mechanisms and controls.

There was significant mention in the report of the importance and role of such bodies, and their relevance in shaping the rights landscape in the UK in relation to the development and use of AI should not be underestimated. They are also likely to play a key role in subsequent evidence gathering.

Industry bodies could also have significant impact on rights holders’ engagement with developers and the creation of balanced approaches in rights holder/developer relationships, acknowledging the fact that one needs both developers and creators properly incentivised and remunerated to make AI work.

Jamie Watt is a Partner and Head of the IP/IT team at Harper Macleod in Edinburgh and Simon Casinader is a Partner in the IP practice at K&L Gates in London

WIPO is hosting webinars on the Hague System during April, May and June 2026.

The webinars are in English, French and Spanish and cover the following topics:

• New Bulletin Search Capabilities in the Hague System: A Practical Webinar for Users and IP Offices
• eHague Power Tips: Portfolios, Access Rights and the New Notification System 
• Helping SMEs Protect Designs

The dates and times of each webinar are available on the WIPO website here, where you can also register to attend. All the webinars will include a live Q&A with WIPO experts.

WIPO states: “Designed for IP rights holders, representatives, and IP offices, these sessions offer practical tips to manage your portfolios, set access rights, monitor registrations, and make the most of the new secure notification system. We’ll also explore advanced search tools in the Hague Bulletin and discover strategies tailored to help small and medium-sized enterprises protect their designs effectively on the international stage.”

Applications via the Hague System for international protection of industrial designs increased by 9.4% in 2025, according to figures published by WIPO this month.

The number of designs contained in the applications also grew by 5.2% to reach 28,588 designs – a record number. This was the fifth consecutive year of growth for the Hague System.

China led in design filings in 2025 with 5,911 designs, followed by Germany (4,530 designs), the United States (3,882), Switzerland (2,285) and Italy (2,015).

Four of the top five states of origin recorded growth, with the United States increasing by 27.5% and China by 21.4%. Italy fell by 10.4%.

There were significant increases in filings by Huawei Technologies and Beijing Xiaomi Mobile Software and by Apple. Ferrari filed fewer designs in 2025 compared to 2024.

Huawei Technologies claimed the highest number of published designs in 2025, with 1,200 designs included in applications. Beijing Xiaomi Mobile Software filed 659 designs, Procter & Gamble 613 (28 fewer than in 2024), Philips Electronics 540 and Samsung Electronics 525.

Among the top 10 applicants, five operate in the ICT and consumer electronics sector, two in consumer goods, two in automotive, and one in construction.

More details are available on WIPO’s website here, along with data on PCT, Madrid System and ADR filing trends in 2025.

WIPO Director General Daren Tang (pictured) said in a statement: “In this world of shortened innovation and business cycles, WIPO will work hard to ensure that our Global IP Services keeps pace with the changing expectations of our customers, making what we offer more efficient, more digital and more customer centred, so that entrepreneurs and enterprises can continue using the PCT, Madrid and Hague systems to secure IP protection across borders.”

Photo © WIPO by Emmanuel Berrod, licensed under a Creative Commons Attribution 4.0 International License

The MARQUES Design Tracker has new sections on Bolivia, Brazil, Chile, Greece, Hungary, Mexico, Paraguay and Uruguay.

The Design Tracker is a valuable map-based tool for design practitioners, which provides applicants with an overview of filing requirements for national and International filings.

It now covers more than 40 countries in six continents.

For each country, standard information is provided, including: Are multiple applications available? How many views are accepted and what kinds of views? What means of representation are available and are there substantive and/or formal requirements for the representation? Is deferment available? What information is mandatory to provide? What is the term of protection and is there a grace period? What are the grounds of examination?

The Design Tracker is compiled by members of the MARQUES Designs Team. Please contact a member of the Team for more information, or if you have any questions.

You can access the Design tracker here.

IP practitioners with experience in design protection are being encouraged to join the EUIPO Pro Bono Programme.

Last year, the Programme received 1,375 SME support requests, with over 90% of applications being microenterprises.

Requests came from all EU Member States, led by Germany, Spain, Italy, France and the Netherlands.

According to EUIPO, 49% of SMEs needed help preparing an IP application and 23% sought guidance on selecting the most appropriate IP rights.

The Pro Bono network includes 289 active IP experts, with 165 new members in 2025. Most consultations last one to four hours.

In 2026, the Programme will place a stronger emphasis on engaging designers and design-driven SMEs. To find out more, and sign up, visit the EUIPO website here.

DesignView has added images from 44 IP offices outside the EU, meaning its functionality now covers data from all connected IP offices.

The total number of searchable images is over 111 million, an almost eight-fold increase, according to an announcement by EUIPO.

EUIPO and the EU IP offices launched DesignView in 2012 through the EU IP Network (EUIPN). It is now the world’s largest free online design database, covering 24 million industrial designs, and the world’s largest image-search system.

EUIPO states: “DesignView is a free, multilingual online consultation tool that enables users to search, view and compare industrial designs from participating IP offices worldwide in one platform. Available 24/7, it allows businesses, designers and examiners to visualise existing designs, assess novelty, monitor market trends and follow updates on registered designs. The tool also supports offices in examination processes and in assessing earlier rights.”