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Federal Court finds infringement of Crocs’ industrial design

Over the years, Crocs filed a number of lawsuits alleging infringement of its clog shoe designs. One of them was against USA Dawgs. Earlier this year, Crocs obtained a judgement of infringement and was awarded over $6 million in damages. Read Crocs’ press release here.

In 2017, the battle between the two continued into Canada. Crocs Canada sued Canada Dawgs for industrial design infringement of its fleeced clog design.

In its decision issued October 2022, the Federal Court found infringement of Croc’s Industrial Design by Canada Dawg’s “Fleece Dawgs” shoes, and awarded Crocs an accounting of profits.

In the Court’s analysis, Croc’s Industrial Design was entitled to a broad scope of protection as there were substantial differences between the design and the prior art. Features of the design were not dictated solely by utilitarian function as there are many ways to do different features and there are design choices involved (for example, in respect of the fleece lining and collar). From the perspective of the “informed consumer” who is familiar with the market, taking into account the scope of protection, the overall designs were found not substantially different.

The Court also commented that Canada Dawg’s focus on points of difference caused it to lose sight of the fact/fail to appreciate that Croc’s Industrial Design protects the overall appearance of the combination of its features.

Read the full decision here.

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