NIWOT, Colo.— Crocs is suing Five Below, alleging the discount retailer sold knockoff versions of Crocs’ famous foam clogs.
The allegations were detailed in a lawsuit filed earlier this month by Crocs and its subsidiary, Colorado-based Jibbitz Charms, in U.S. District Court in Denver.
Crocs’ lawsuit charges Philadelphia-based Five Below with selling Crocs look-alikes and accessories even after being notified last winter of their trademark, patent, and intellectual property infringement.
The lawsuit says the retailer's charms infringe three patents covering systems for attaching decorative charms to footwear and other wearable products. Crocs also says Five Below's Novelty Shoe Purse copies elements of the Classic Clog and a Crocs bag charm.
The legal complaint asserts that Five Below was attempting to benefit from Crocs' investment in its brand by selling similar-looking footwear at a lower price. Five Below lists its Juniors Charm Clog for $7.
Crocs said that Five Below’s Juniors Charm Clog products copy “distinctive” aspects of the brand’s Classic Clog, including the “instantly recognizable pattern of holes,” “trapezoidal openings” and a “textured” and “decorative” band.
Crocs and Jibbitz are asking for a jury trial and unspecified damages, including alleged lost profits. They also seek a permanent injunction preventing Five Below from selling products that infringe their intellectual property.
Legal scholars note that fashion patent cases are difficult to win, even if it is obvious that the design was meant to copy attributes of another company’s product.
Crocs will have to prove that its design is sufficiently unique to validate its patents, that Five Below copied that patent, and customers were duped into buying Five Below’s product when they meant to buy an authentic pair of Crocs.
