Love them or hate them the recent ruling by the European Court of Justice against the shoe brand Crocs drives home an important principle of design law. That is, you can only secure a valid registered design in the EU if your design is new and has not been made public at the time of filing. EU law gives businesses a period of one year from first showing in public to make a filing. After that the design is deemed not new and any subsequent registration secured is vulnerable to challenge and ultimately invalid.
The challenge to Crocs was made by a French company who produced evidence to show that Crocs had launched their design at the 2002 Fort Lauderdale Boat Show, two whole years before filing for their design. In this internet age there is no hiding these facts. The argument that EU manufacturers could not have known about the design before the application to register was rejected. Likewise an argument that EU manufacturers would not have been able to see the design on crocs website before the filing date.
If Crocs had applied for protection within a year of the 2002 Boat Show they could be enjoying registered design protection until 2027. As it is, they now have no solid protection against copying of their design in the EU. Where close copies are made actions for unfair competition and passing off may be possible but they are far from straightforward, notoriously uncertain and expensive.
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