ÖoB wins trade mark dispute against Crocs: Crocs’ 3D trade mark is declared invalid

Sandart & Partners has represented the Swedish retail chain ÖoB in a trade mark dispute against Crocs.

On 2 December 2020, the Patent and Market Court of Appeal (PMCA) decided that Crocs’ Swedish trade mark registration depicting the ”Crocs Classic” clog – a so called three dimensional trademark – ska be invalidated. Consequently, the PMCA confirmed the judgment rendered by the Patent and Market Court.

Crocs shall also bear ÖoB’s litigation costs. The judgment is final and may not be appealed.

The PMCA invalidated the trade mark registration because Crocs’ trade mark lacked distinctiveness within the meaning of trade mark law (Chapter 2 Section 5 of the Swedish Trade Mark Act). First, the Court concluded that the trade mark did not have an inherent distinctiveness. There has since long existed shoe models similar to the registered trade mark on the market and Crocs’ model Classic does not depart significantly from the norm.

Secondly, the PMCA found that the shape of Crocs Classic has not acquired any distinctiveness. The Court concluded that the evidence regarding marketing efforts which Crocs had presented must be considered to be remarkably thin. In addition, the Court found that it was not possible to draw any conclusions from the market survey that Crocs had invoked as to whether the shape of the shoe itself is perceived as a trade mark for the product – inter alia due to the design of the questionnaire.

One of the judges had a dissenting opinion in part, as regards the reasons for the decision. He found that that Crocs’ trade mark registration should be invalidated also because the trade mark consists exclusively of a shape which results from the nature of the goods themselves (Chapter 2 Section 4 item 1 of the Swedish Trade Mark Act).

The reason why ÖoB initiated invalidity proceedings against Crocs was that Crocs claimed that ÖoB had committed trade mark infringement by selling another clog in ÖoB’s stores. The invalidity of Crocs’ trade mark registration entails that ÖoB has not committed any trade mark infringement.


Anders Kylhammar anders.kylhammar@sandart.se

Johanna Galfvensjö johanna.galfvensjo@sandart.se