Earlier this month, the Federal Circuit Court heard oral argument in Crocs, Inc. v. International Trade Commission, a trademark case we have been watching because it attracted an amicus brief. In this case, Crocs appeals the International Trade Commission’s denial of a general exclusion order. This is our argument recap.
David A. Caine argued for Crocs. The panel opened by asking whether Crocs filed its appeal on time. Caine argued it had, explaining that Crocs filed “a timely notice of appeal pursuant to the plain language” of the governing statute. He argued the Commission issued “a single statement” constituting one “determination,” which under past precedent is “not final until following the presidential review period.”
A judge pressed Caine, asking whether precedent holding that “two different determinations within a single decision” triggered “different appeal timing requirements for those two different determinations” would apply here. Caine responded by attempting to distinguish the precedent, arguing it was distinguishable because “there were actually two separate statements of decision” in that case that were “issued on different days.” Here, he explained, the Commission issued one determination that did not become final until after “the presidential review period” passed, which is why Crocs could not “submit an appeal earlier.”
Turning to the merits, Caine noted the Commission found three factors “all favored a likelihood of confusion.” According to Caine, those findings “should have been dispositive regardless of the weighing of other factors.” He suggested that, “even if any doubt remains,” that doubt “is erased by the Commission’s clear errors” in concluding there was “no likelihood of confusion” based on the other factors. Those “clear errors,” he argued, “stood in the way of the issuance of a general exclusion order.”
Carl Paul Bretscher argued for the Commission. He began by emphasizing that the “finality” of the determination, rather than its form, controls. Only a “determination that includes a remedial order,” he said, is subject to presidential review. A “final determination,” therefore, “means there’s a decision on the merits” that is not subject to “further administrative or presidential proceedings.”
A judge asked whether there was “any other area of law” where “a single paper could have multiple final determinations with different notices of appeal time periods.” Bretscher responded by indicating that, while he was “not familiar with other agencies,” the Commission’s practice made such situations “not uncommon.”
When the discussion turned to the merits, Bretscher argued Crocs “had great success” for “15 years before these trademarks were even issued.” He explained “many factors drove the success and the recognition” of Crocs shoes, including “the concept of a plastic molded clog” and the “lovable ugliness to it.” He argued, moreover, the respondent “specifically redesigned their shoes to avoid likelihood of confusion” by removing all “trademark elements.”
A judge asked whether the fact that the respondent “redesigned” their shoes suggested the original design did create confusion. Bretscher disagreed, arguing the shoe “did not infringe” because it “has a different look” and a “very different price point.” When pressed on how the Commission could find that Crocs’s mark was distinctive but the respondent’s use was generic, Bretscher answered by arguing Crocs’s mark “appears in the heel strap of the shoe,” while the respondent’s shoes “have their own tag on the top” that includes different language. Thus, he said, “it’s questionable to what extent consumers are going to be misled” to believe the shoes are Crocs.
In rebuttal, Caine argued the Commission “points to no statutory language” supporting “its view on the timing of the appeal.” In response to a question, Caine argued the differential “timing doesn’t apply in the case where you have a single final determination” subject to presidential review. He emphasized that the determination “does not become final for appeal purposes until after the presidential review period.”
We will continue monitoring this case and report on developments.