This week’s BL Business Branding Newsletter steps into a new legal clash between Crocs and retailer Five Below over clogs, charms, and the intellectual property rights behind one of the footwear industry’s most recognizable products. The case highlights how a company can use different types of intellectual property protections to defend not only the look of its products, but also the ways consumers interact with them.
In a complaint filed in the U.S. District Court for the District of Colorado on September 18th, Crocs, Inc. and Jibbitz, Inc. accuse retailer Five Below of infringing rights associated with Crocs’ Classic Clog, its newer Saru clog, and Jibbitz decorative charms. The lawsuit targets Five Below’s “Juniors Charm Clogs,” as well as a clog-shaped “Novelty Shoe Purse.”
Crocs’ claims involve several different forms of intellectual property. The company alleges that Five Below’s clog-style shoe copies elements of the Classic Clog, such as its distinctive pattern of holes, openings, and textured band. Crocs argues that the similarities could cause consumers to associate Five Below’s products with Crocs.
The lawsuit also includes a design patent claim concerning the appearance of the shoe, along with three utility patent claims asserted by Jibbitz. Those patents cover methods for attaching the decorative charms to shoes and other wearable items. The dispute is not just about whether Five Below’s products look similar to Crocs products, it also addresses how the shoes and charms function together. This case is getting media attention in light of the popularity of these products with consumers.
Crocs says it previously sent Five Below a demand letter identifying the products and the intellectual property rights at issue. According to the complaint, Five Below continued selling the products. Crocs and Jibbitz are seeking injunctive relief, damages and profits, attorneys’ fees, and destruction of allegedly infringing inventory.
What Can Businesses Learn From This?
This case shows the value of thinking about intellectual property protection from multiple angles. A successful product may involve more than one protectable element, from its overall appearance and distinctive design, to the way consumers use or interact with it. Each element may be entitled to important intellectual property protection.
This also serves as a reminder that intellectual property protection does not necessarily stop with a company’s core product. As brands expand into accessories, new product categories, and different ways of engaging with consumers, businesses should consider whether those developments create additional intellectual property that should be protected in the marketplace.
Want to know more about how to help your brand be a step above the rest? Contact our BL Trademark Team by reaching out to Seth Berenzweig at sberenzweig@berenzweiglaw.com today.