In its recent decision in T-228/25, the General Court dismissed Crocs Inc.’s action against a Board of Appeal decision finding that its registered clog design lacked individual character.

The case concerns a simple point: when does a variation actually matter in design law?

Background
Crocs, Inc. owned an EU design registered on 22 November 2004, depicting the well-known design Crocs clog.

The issue was whether the contested design produced a different overall impression compared to an earlier clog design.

A key factor in that assessment was the designer’s degree of freedom. The General Court confirmed that, although clogs must follow certain ergonomic features, designers retain a high degree of freedom as to materials, colours, shapes, patterns, and decorative elements.

Given that level of freedom, minor differences are less likely to produce a different overall impression on an informed user.

Both designs shared the same overall shape, with a thick sole and a rounded toe cap, combined with multiple circular holes on the upper surface and cut-outs along the front and sides.

The only difference was the presence of a heel strap in the contested design.

In the context of the otherwise identical design, the strap did not carry sufficient visual weight. While the Board of Appeal accepted that an informed user would notice it, the strap was regarded as an incidental element, secondary to the overall shape of the clog.

As such, it was not capable, on its own, of outweighing the similarities between the designs. The informed user could readily perceive the contested design as a variation of the same product, with the strap amounting to no more than a minor difference insufficient to alter the overall impression – a conclusion the General Court upheld.

Moreover, the General Court made clear that factors such as the commercial success of the product, its renown or recognition within the sector are not relevant in assessing individual character, as they do not affect the overall impression produced on the informed user.

Impact
The decision is a reminder that where the designer’s degree of freedom is high, the threshold for distinction rises accordingly.

For rights holders, this highlights the importance of ensuring that any variation does more than refine an existing form – it must meaningfully alter how the design is perceived, rather than amount to a merely incidental change. Where the forms remain aligned, the overall impression holds.

The decision will, however, be helpful for owners of validly registered designs, as it provides support for infringement claims against ‘variants’ of their designs that add an additional element or elements (such as a heel strap).


Bear & Wolf regularly acts for creatives and right owners in the product design field. Should you require any assistance or further information, please don’t hesitate to get in touch with us.