Argument Preview / Panel Activity

As we’ve been highlighting, four cases being argued in April at the Federal Circuit attracted amicus briefs. One of these cases is Crocs, Inc. v. Effervescent, Inc. In this case, the Federal Circuit will review a determination by a judge in the District of Colorado to grant a motion for summary judgment dismissing a claim of false advertising under the Lanham Act. This is our argument preview.

In their opening brief, the appellants (Double Diamond Distribution, Ltd., U.S.A. Dawgs, Inc., and Mojave Desert Holdings, LLC) argue the district court erred in granting Crocs’ motion for summary judgment dismissing their claim of false advertising. They assert “there is nothing unique or differentiated about Croslite™” that justifies Crocs advertising. That advertising, they explain, “linked the term ‘patented’ to product qualities and characteristics, lent credibility to [Crocs’] product attribute claims, and misled consumers into believing that Crocs’ products . . . were the only ones that had, or legally could have, the advertised properties.” In fact, they argue, Crocs did not have a patent on Croslite™. Additionally, they argue, the district court erred by stating that Dawgs alleged only “a false designation of authorship.” They contend the complaint had “nothing to do with authorship” and was focused on “Crocs’ linkage of false terms like ‘patented,’ ‘proprietary’ and ‘exclusive’ to build credibility for [Crocs’] product attribute claims.” The appellants maintain, moreover, the district court improperly determined the “meaning of the term ‘patented’ to consumers . . . as a matter of law” when the “meaning of advertising to consumers is a question of fact.” 

In its response brief, Crocs argues that from the appellants’ initial counterclaim “until their opposition to Crocs’s motion for summary judgment,” the appellants claimed “Crocs had violated the Lanham Act because Crocs used the words ‘patented,’ ‘exclusive,’ and ‘proprietary’ to falsely imply that Crocs had invented its shoe material.” According to Crocs, the appellants then changed their position at summary judgment, alleging “Crocs had misrepresented the ‘nature, characteristics, qualities, or geographic origin’ of its footwear by ‘linking’ the ‘patented,’ ‘exclusive,’ and ‘proprietary’ inventorship terms to a set of separate, physical product qualities.” Crocs asserts that both the original and the new theory, which was “never properly before the district court,” were unsupported. Crocs also contends the appellants “offered no evidence that these terms should be given (or that consumers give them) any meaning other than their ordinary, non-physical meanings connoting authorship, inventorship, ownership.” Crocs argues “terms with such meanings are non-actionable” under the Lanham Act because they are puffery. 

In their reply brief, the appellants first argue that the lower court “overextended” the applicable case law and “granted safe harbor status, as a matter of law, to terms like ‘patented, proprietary, and exclusive,’ regardless of consumer confusion or market harm, and regardless of literal falsity or whether an admitted false advertiser (in this case Crocs), intended to mislead consumers.” They argue Crocs continues to mischaracterize their position when their “counterclaims plainly alleged that Crocs’ advertisements link its false claims about Croslite being patented, proprietary, and exclusive with the impression that Croslite had characteristics that were unique to Crocs.” The appellants contend that, contrary to Crocs’ assertions, they “did in fact properly present evidence to oppose summary judgment.” Finally, they argue all Crocs’ remaining arguments that the terms were “nonactionable puffery” and “vague generalities that no reasonable person would rely on as assertions of particular facts” fail because “there are specific and credible reasons to believe that consumers were in fact misled by Crocs.”

The International Trademark Association filed an amicus brief in support of neither party. It argues the Federal Circuit “should make clear that no per se rule exists that words such as ‘patented,’ ‘proprietary,’ and ‘exclusive’ necessarily cannot give rise to false advertising liability.” 

Oral argument will be heard on Wednesday, April 3. We will keep track of this case and report on any developments.