By: Linda Graham

    Two decades ago, Crocs created an easy-to-clean clog made with foam that has become one of the most recognizable pieces of footwear that enjoyed massive success. For years, the company has been fighting copycats in an effort to protect its iconic design. In July, Crocs took yet another step by filing lawsuits against multiple high-profile companies, including Walmart and Hobby Lobby claiming knockoffs infringe on its trademark and dilute the company’s brand. For example, Crocs alleges that Walmart is selling cheaper knockoffs of its clogs under a variety of different names, such as “Time and Tru” and “George.” The lawsuits, filed in multiple U.S. District Courts, seek monetary damages for violations relating to Crocs’ three-dimensional trademark rights. Further discussion regarding Crocs trade dress claim can be found at DBL’s Blackletter Podcast https://blackletterstudio.com/monday-minutes.

    In addition, Crocs filed a federal complaint with the U.S. International Trade Commission (ITC) seeking to block the import and sale of copycat products. The ITC is a quasi-judicial federal government agency responsible for protecting U.S. domestic entities from unfair competition. This forum is most often used by patent litigants but also can be beneficial to obtain relief from trademark infringement. A board of six commissioners has now determined that an investigation is warranted, thereby shifting the proceeding to oversight by an administrative law judge. If Crocs prevails, it will be awarded an exclusion order banning the importation of infringing products as well as a cease–and–desist order enjoining U.S. sales. However, no monetary damages are available.

    This multi-layered strategy can be instructive for other trademark owners. Each has advantages as well as limitations. First, the ITC has jurisdiction over all articles imported into the U.S., while a district court may not have jurisdiction over a foreign supplier. In addition, all infringers, both foreign and domestic, can be joined in one action. Second, a typical ITC investigation averages less than two years compared to potentially more than three years in federal district court. Third, the ITC is limited to injunctive relief. If money damages are desired, district court litigation will be required. 

    Navigating incidents of trademark infringement requires multiple considerations and careful advance planning. The trademark attorneys at Dunlap Bennett & Ludwig have decades of trademark enforcement experience and expertly guide business owners confronting infringers.

    To learn about Dunlap Bennett & Ludwig and how we can assist with your legal needs, contact us by calling 800-747-9354 or by emailing clientservices@dbllawyers.com.

    To learn about trademarks, visit our Trademarks & Branding page.


    To learn more about trademarks, click here, or contact our Trademarks partner lead below:

    Linda Graham

    Linda Graham is a partner at Dunlap Bennett & Ludwig. Her diverse legal practice is focused on trademark prosecution, trademark disputes, trademark agreements, and business law. Prior to joining Dunlap Bennett & Ludwig PLLC, Linda worked for a multi-jurisdictional estate planning and business law firm where she supervised and trained new attorneys. She has represented individuals and businesses in transactional and litigation matters with an emphasis on the health care industry.

    To learn more about Ms. Graham and how she can assist with your legal needs, click here.


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