Lacking a European Touch – Article from #1 2018

SUMMARY

On March 14, 2018, the European General Court in Crocs Inc v. European Union Intellectual Property Office issued a judgment cancelling a European Community design registration for American footwear giants Crocs. This confirmed a decision by the Board of Appeal in June 2016, which had held that Crocs’ signature footwear design was invalidly registered owing to prior publication.

Meanwhile, in faraway India, ‘Crocs’ massive design infringement litigation against seven Indian footwear manufacturers over the same design at issue in the European proceedings, finally came to a head in February 2018 before the Delhi High Court in Crocs Inc v. Liberty Shoes.

Like its European counterparts, the Indian Court ruled against Crocs on the validity of the design registration. However, the European General Court decision also revelaed that much of the material on which its judgment was based was never put before the Indian Court. This raises numerous concerns, not just about the bleak future of Crocs’ Indian design infringement actions but also of possible sanctions against Crocs for failing to meet disclosure requirements under Indian legal procedure.

This note discusses the key findings of the Delhi High Court in Crocs Inc v. Liberty Shoes on the issues of prior publication and originality. The finding on prior publication is incomplete due to its failure to refer to the material disclosed in the European proceedings, as well as the Delhi Court’s marked deviation from established Indian design law in ruling that Crocs’ design lacked originality. It is a decision, that therefore, requires urgent reconsideration on both counts.