As we have been reporting, five cases being argued at the Federal Circuit in November attracted amicus briefs. One of these cases is Crocs, Inc. v. International Trade Commission, a trademark case. In it, Crocs appeals a denial of a general exclusion order by the International Trade Commission. This is our argument preview.
In its opening brief, Crocs argues the Commission erred when it did not issue a general exclusion order because “Crocs timely submitted substantial evidence” to demonstrate trademark infringement. Crocs disputes the Commission’s claim that it failed to show validity, arguing “Crocs had no burden” and the “Defaulting Respondents could not have presented an invalidity defense.” Crocs agrees with the Commission’s evaluation of certain factors related to proving a likelihood of confusion, suggesting they “weigh in favor of a likelihood of confusion” and “are more than sufficient to establish infringement.” Crocs, however, argues the Commission erred in its evaluation of other “actual confusion factors.” Crocs explains the Commission’s error asw caused by the its “nearly exclusive reliance on a control survey.”
In its response, the Commission argues the appeal is untimely because Crocs filed its notice of appeal “five weeks after the deadline expired.” In this regard, the Commission argues its determination is “final upon issuance.” As a result, it says, Crocs had until November 13, 2023 to “appeal the Commission’s final negative determination.” According to the Commission, “Crocs’s failure to do so . . . dooms its appeal.” On the merits, the Commission argues its weighing of certain factors in favor of Crocs is “not dispositive” because “similarity was outweighed by other factors.” The Commission adds it found “conditions of sale” dispelled “any confusion as to the source of the products.”
In its reply, Crocs challenges the reliability of the control survey, arguing it “showed nearly zero net confusion” rendering it “inherently non-credible.” Crocs also argues the Commission “improperly dismissed . . . evidence of actual confusion” and “ignores its own finding that the ‘CROCS’ word mark is not a generic term.” Addressing the timeliness of its appeal, Crocs suggests “a final Commission determination is a unitary whole” and, as a result, Crocs’s appeal was timely because Crocs filed before the “expiration of the Presidential Review Period.”
An amicus brief was filed by Hobby Lobby Stores, Inc. and Orly Shoe Corp in support of the Commission and affirmance.
Oral argument is scheduled to be heard on Wednesday, November 5, 2025 at 10:00 a.m. in Courtroom 402.