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Lidl's Crocs trademark claim is rejected

Discount supermarket chain Lidl has had a request to cancel a trademark held by Crocs thrown out by the Community Trade Mark Office.

The claim related to the 3D shape of the recognisable plastic shoes across the EU, suggesting the German chain had plans to launch an imitation product.

In a document filed to the Cancellation Division, Lidl argued that the shape of Crocs is a variation of an existing shoe and was not distinctive enough for the brand to “monopolise”.

It also said the design enables the free circulation of air and increased comfort, a technical function on which a trademark cannot be applied.

Crocs countered by saying the shape departed “significantly from the norm or customs of the [footwear] sector”. It put forward newspaper and other media clippings to support its reasoning that the public is able to recognise the shape as originating from Crocs.

The Cancellation Division dismissed Lidl’s claim on the basis that the style was ruled to be noticeably distinct from typical shoes, sandals and beach footwear. It also rejected the technical function argument, noting that, as a whole, the shape does not fulfil a technical function, even though some of its parts do.

Lauren Somers, trademark attorney at law firm HGF, said: “Crocs obviously values the shape of its shoes and sandals highly, thus the reason for the trademark registration. The registration effectively enables them to stop the sale of shoes or sandals of the same or similar shape across the whole of the EU.

“As the Community Trade Mark Office commented, some consumers love the shape [and] some consumers hate the shape of Crocs shoes; but what they agree on is that the shape is distinctive of Crocs shoes and no other, and thus they should have a monopoly right to the shape.”

The decision can be appealed. Lidl did not respond to Drapers’ request for comment.

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