Background of the dispute

Crocs owned an EU design registration for footwear filed in November 2004 with a priority date of May 2004. The design covered the now-famous Crocs clog, including its heel strap.

In 2022, Gor Factory challenged the registration, relying on an earlier “Holey Soles” clog design that had been disclosed before Crocs’ priority date. According to Gor Factory, the Crocs design did not differ sufficiently from the earlier design to justify protection. The EUIPO’s Invalidity Division agreed, as did the Board of Appeal. Crocs then appealed to the General Court.

High degree of design freedom

Crocs argued that design freedom was limited because clogs must share certain basic characteristics, such as a rounded shape, open back and flat sole. The court disagreed. While footwear must satisfy ergonomic and functional requirements, designers remain free to choose materials, colours, decorative elements, and the number, size and arrangement of holes and cut-outs.

As a result, the court upheld the Board of Appeal’s finding that the designer’s degree of freedom was high. This matters because where design freedom is broad, relatively minor differences are less likely to distinguish one design from another.

Heel strap insufficient to create individual character

The central issue was whether the heel strap was sufficient to distinguish the Crocs design from the earlier Holey Soles clog.

The General Court agreed with the Board of Appeal that, although an informed user would notice the strap, both designs shared the same essential features, including the overall shape, thick sole, rounded toe cap, ventilation holes and side cut-outs, resulting in the same overall impression. The court considered the strap a secondary feature that was insufficient to outweigh these similarities and could be perceived merely as a variation of the earlier design. It also rejected Crocs’ argument that the strap’s specific shape, rolled edges and large rivets reflected creative design choices capable of conferring individual character, reiterating that design freedom is only one factor in the assessment and that creative modifications to a single feature cannot compensate where the overall design remains substantially identical to the prior art.

Commercial success is not a substitute for individual character

Crocs also relied on the clog’s cultural significance, pointing to its inclusion in the Design Museum’s publication Fifty Shoes That Changed the World.

The court held that such considerations are legally irrelevant when assessing individual character. The analysis under Article 6 focuses exclusively on the overall impression created by the design, viewed through the eyes of the informed user, taking into account the designer’s degree of freedom. Factors such as market success, fame, industry recognition and contribution to the development of the sector do not form part of the legal test.

Key takeaways

The decision serves as a clear illustration that even one of the most recognisable footwear designs of the past two decades is not immune from invalidity where the requirements of individual character are not met. It also reinforces several established principles of EU design law.

First, individual character remains an objective assessment focused on visual appearance rather than commercial success. Second, where design freedom is broad, relatively modest modifications to an existing design are unlikely to be sufficient to secure protection for the new model. Finally, applicants should be cautious about relying on a single distinctive feature to establish individual character where the overall product configuration closely resembles prior art. Adding a new feature to an otherwise identical design may not be enough to justify separate protection, particularly if the feature is regarded as incidental to the product’s overall appearance.

Businesses should consider registering design variations at the outset. Later-filed variants may struggle to overcome earlier disclosures, including the applicant’s own designs.

Case details at a glance

Jurisdiction: European Union
Decision level: General Court
Parties: Crocs v EUIPO – Gor Factory, SA
Date: 22 April 2026
Citation: T-228/25
Decision: dycip.com/t-228-25