When ‘Patented’ Becomes False Advertising: Crocs Takes Its Dastar Fight to the Supreme Court

Patent

by Dennis Crouch

In July 2025, Crocs asked the Supreme Court to decide a seemingly clean legal question: whether the Lanham Act’s false advertising provision, § 43(a)(1)(B), covers misrepresentations about a product’s intangible attributes, such as its patent status. Two new filings complicate the story somewhat. The Accessories Council, in an amicus brief supporting Crocs, urges the Court to take the case to prevent what it sees as a chilling effect on both patent enforcement and routine commercial speech. Dawgs’ brief in opposition reframes the case entirely, insisting that this dispute is about false claims tied to tangible product attributes—not abstract questions about intangibles at all.

The case stems from a protracted legal battle between Crocs and Double Diamond (maker of “Dawgs” shoes) that began in 2006 with design patent infringement litigation. The current dispute centers on Double Diamond’s false advertising counterclaim, alleging that Crocs misled consumers by marketing its “Croslite” foam material as “patented,” “proprietary,” and “exclusive” when the material was neither patented nor unique. Rather it was essentially the same EVA foam used by many competitors.

Double Diamond pointed to advertisements like one stating “The reason the shoes are so comfortable is that they are made of a patented closed-cell resin,” arguing that such claims gave consumers the false impression that Crocs’ material was distinctively superior. In September 2021, the District of Colorado granted summary judgment for Crocs, reasoning that patent-related terms like “patented” and “exclusive” concerned inventorship rather than tangible product qualities, similar to the authorship claims rejected by the Supreme Court in in Dastar v. Twentieth Century Fox, 539 U.S. 23 (2003). However, in October 2024, the Federal Circuit unanimously reversed in favor of Dawgs, holding that false patent advertising can violate the Lanham Act when used to mislead consumers about a product’s qualities or performance. The appellate court distinguished Dastar by finding that Crocs wasn’t merely claiming credit for invention, but was linking its patent assertions to the shoes’ physical attributes and performance characteristics in consumers’ minds, thereby making actionable misrepresentations about the “nature, characteristics, [or] qualities” of the product under § 43(a)(1)(B).

Two narratives built on the same precedents. In reading through the Supreme Court briefing – one thing that I found most interesting is that both sides cite the same set of leading cases, but still tell different stories.

  • Dastar v. Twentieth Century Fox, 539 U.S. 23 (2003). Crocs reads Dastar as a caution against letting the Lanham Act police authorship- or inventorship-type claims, warning that stretching the Act risks creating a “mutant” hybrid of trademark and patent law. Dawgs emphasizes a different passage: Dastar itself noted that § 43(a)(1)(B) would apply where advertising creates the impression a product is “quite different” in its qualities. That, Dawgs argues, is exactly what Crocs did—use “patented” to suggest its foam was materially superior.
  • Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014). Crocs points to Lexmark as confirmation that Lanham Act standing is broad but not unlimited – that courts must tether liability to the statute’s text and purpose. For Crocs, the decision reinforces that § 43(a)(1)(B) is not a free-floating “truth in advertising” regime, but a targeted tool, and expanding it to cover intangible traits like patent status would sever the cause of action from its statutory moorings. Dawgs, by contrast, stresses Lexmark’s core holding that competitors harmed by false advertising squarely fall within the Act’s “zone of interests.” Dawgs argues that it fits that mold perfectly: Crocs’ false “patented” claim directly injured a competitor by misleading consumers into believing Crocs’ shoes had superior material qualities.
  • Sybersound Records, Inc. v. UAV Corp., 517 F.3d 1137 (9th Cir. 2008). Crocs reads Sybersound as establishing a bright-line rule that § 43(a)(1)(B) covers only “characteristics of the good itself” and not intangibles like licensing status or patent coverage.  Dawgs counter that Sybersound never drew any tangible/intangible distinction—the word “intangible” doesn’t even appear in the opinion. Instead, Dawgs argue, Sybersound simply held that licensing status has no connection to the karaoke recording itself, unlike Crocs’ false “patented” claims that were directly tied to alleged material superiority.
  • Baden Sports, Inc. v. Molten USA, Inc., 556 F.3d 1300 (Fed. Cir. 2009). Crocs invoke Baden as proof that the Federal Circuit previously rejected Lanham Act liability for false innovation claims, arguing it shows courts shouldn’t let competitors relitigate patent-like disputes under trademark law. But Dawgs read Baden as actually supporting their theory: the court there explicitly noted that Baden had “waived any argument about novelty or newness” of the actual product and pursued only a false authorship claim. Unlike Baden, Dawgs argue they’re alleging misrepresentations about what the shoes are actually made of. This is the same kind of product-focused claim Baden suggested might be viable.
  • Kehoe Component Sales Inc. v. Best Lighting Products, Inc., 796 F.3d 576 (6th Cir. 2015). Crocs cite Kehoe for its holding that the Lanham Act “does not encompass misrepresentations about the source of ideas embodied in the object.” Dawgs flip the emphasis, pointing to Kehoe‘s recognition that § 43(a)(1)(B) does reach misrepresentations about a product’s “properties or capabilities.” They argue this case would come out exactly the same way in the Sixth Circuit because, unlike the pure false-authorship claim in Kehoe, Dawgs allege Crocs used its false “patented” claims to mislead consumers about the actual properties and capabilities of its shoes.

Amicus perspective. The Accessories Council brief supports Crocs petition.  Its most clever argument centers on how the Federal Circuit’s unique as the patent appeals court role magnifies this decision’s impact beyond a typical circuit split. Here’s the mechanism they’re describing: When a company sues for patent infringement anywhere in the country, any related Lanham Act counterclaim gets swept up into the Federal Circuit’s jurisdiction on appeal. This means the Federal Circuit’s interpretation of Section 43(a)(1)(B) will govern patent cases nationwide, even in circuits that might otherwise disagree with this approach.

The brief points to two systemic: first, that patent holders will be chilled from enforcing their rights by the threat of false-advertising counterclaims, and second, that design-focused industries will hesitate to use routine descriptors like “exclusive” or “proprietary” for fear of Lanham Act liability.  I don’t really see these as negative – if there truly are false statements fooling the public.  But the brief particularly argues that the Federal Circuit’s standard fails to provide clear guidance with no meaningful boundary between permissible and impermissible marketing language. This one holds more water because the decision does threaten to undermine the Dastar separation of rights.

Crocs still has an opportunity to file a reply brief, and the case is likely to be considered by the court within the next couple of months.