Much to the dismay of American designers, U.S. district courts have found all too often that slight tweaks to a patented design are enough to avoid infringement by a similarly designed product. That may change in the very near future because of a recent appellate decision regarding the ubiquitous Crocs and “Crocs-style” foam water-clog footwear. In short, the appeals court delivered a major warning shot to knockoff artists, making it known that minor differences in designs will not be enough to avoid infringement when the “overall effect” of the patented and accused designs remain substantially the same. This case will have significant ramifications with respect to not only the water-clog footwear industry, but U.S. design patents in general.

On Feb. 24, in Crocs Inc. v. ITC, 598 F.3d 1294 (2010), the U.S. Court of Appeals for the Federal Circuit reversed the International Trade Commission’s (ITC) finding that shoes sold by respondents Double Diamond Distribution, Effervescent Inc. and Holey Soles Holdings did not infringe Crocs’ U.S. design patent. Instead, the court affirmatively held that the “knock-off” shoe designs did infringe. In reversing, the Federal Circuit sought to apply the 2008 Egyptian Goddess Inc. v. Swisa “ordinary observer” test for determining design patent infringement. 543 F.3d 665 (Fed. Cir. 2008). Despite noticeable differences between the patented and accused designs, the court overturned the ITC’s decision, noting that the differences would not be enough to convince an ordinary observer that the “overall effect” of the accused design was distinct from the patented design.

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