Crocs, perhaps the world's ugliest and best-known rubber clog, could be losing its design patent, registered by the U.S. Patent and Trademark Office in 2006, because a rival shoemaker has sued the company, saying it originally filed the design in 2002.
The ruling is particularly important because the law lets patent owners take the “total profit” earned by any company that sells an infringing “article of manufacture.” For Crocs, that's potentially a lot of profit lost.
An "article of manufacture" doesn't just mean the final product. A component of a product that isn't generally for sale can also be included as an "article of manufacture." This was a decision reached in a Supreme Court ruling last year after Apple sued Samsung over the familiar look of Samsung's icons and home screen design on its tablets and phones.
Crocs, which had a quarterly dip in revenue and is facing closure of more than 150 outlets, says it's going to appeal the ruling, but it's the latest high-profile dispute over "fashion" rather than "function."
Design patents "protect ornamental rather than functional inventions." So if you have something that looks good, even if it doesn't work very differently than the next thing over, sign it up. You can protect your style, even if you don't have a lot of substance.
Does the look of something need to be protected as much as what it does? Comment below.