Have Crocs taken a step too far?

Crocs Inc. has asked the US Supreme Court to clarify whether the Lanham Act could apply to false claims of patent rights following claims made on their website that the Croslite foam, used in their shoes, was "patented" when it was not. 

The Lanham Act prohibits people who “in commercial advertising or promotion, misrepresent the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities”. Crocs argues that this act does not apply to intangible properties such as the status of a patent. 

This legal question has divided the US courts. Some circuits have said that the misrepresentation is only actionable under the Lanham Act if “the characteristics of the good itself” are misrepresented. 

Crocs themselves have warned that using the Lanham Act to police “generalized marketing language” could result in “unchecked litigation”, discouraging legitimate promotional speech.

If this case took place in the UK, the decision would be more clear cut. The UK Patents Act 1977, Section 110, makes falsely claiming a product is “patented” a criminal offense. In the UK, local Trading Standards offices are responsible for enforcing this, but their priorities often lie elsewhere. This means questions of false marking are rarely investigated and punished in the UK.

The US Supreme Court's answer could redraw the line between innovation and advertising, reshaping how far brands can go before stepping over the legal line. 

Every brand should be watching.

the Federal Circuit’s holding threatens to turn every expired patent, invalidated patent, and marking mistake into a potential weapon

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