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.