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.
- SCOTUS Crocs Docket with Briefs.
- Dennis Crouch, False Patent Marking as False Advertising: Overcoming Dastar (Apr. 17, 2024) https://patentlyo.com/patent/2024/04/marking-advertising-overcoming.html
- Dennis Crouch, Distinguishing Dastar: False Patent Marking Claims Get New Life Under the Lanham Act (Oct. 4, 2024) https://patentlyo.com/patent/2024/10/patent-marking-claims.html
- Dennis Crouch, The Services Problem That Undermines Crocs' Textualist False Advertising Defense (July 2025) https://patentlyo.com/patent/2025/07/undermines-textualist-advertising.html
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.