IP Law Daily, PATENT NEWS: Supreme Court asked to review of circuit split on false patent claims, (Jul 25, 2025)

By Carolin Dennis, B.Sc., LL.B., LL.M.

Crocs claims that Section 43(a)(1)(B) is frequently litigated and does not reach claims about patent status or other intangibles.

In a petition for certiorari, Crocs has asked the U.S. Supreme Court to settle a dispute about whether the Lanham Act’s prohibition on misrepresentations as to nature, characteristics, or qualities extends to intangible properties like its patent status and resolve the circuit split over the interpretation of Section 43(a)(1)(B) of the Lanham Act (Crocs, Inc. v. Double Diamond Distribution, Ltd., Dkt. No. 25-75 (U.S. filed on July 18, 2025)).

Crocs, Inc. (Crocs) has petitioned the Supreme Court for a writ of certiorari to review a decision of the U.S. Court of Appeals for the Federal Circuit reversing and remanding a Colorado district court’s summary judgment ruling. The district court had granted summary judgment to Crocs against Double Diamond Distribution, Dawgs, Inc., and Mojave Desert Holdings, LLC (Dawgs) that Dawgs’ counterclaim in a patent infringement suit brought by Crocs failed as a matter of law. The district court concluded that Dawgs’ allegation that Crocs falsely stated that its shoes were made of “patented,” “proprietary,” and “exclusive,” material was “nothing more than a false designation of authorship,” not actionable under the Lanham Act.

However, on appeal, the Federal Circuit recounted Dawgs’ allegations: (1) that Crocs used the falsehood that “Croslite” is patented, proprietary, or exclusive to ascribe characteristics that go to the nature and qualities of Croslite; (2) that Crocs statements referring to the closed-cell resin that it calls “Croslite” as “exclusive, proprietary, and/or patented” causes customers to believe that Crocs molded footwear is made of a material that is different than any other footwear; and (3) that Crocs’ promotional materials deceived consumers and potential consumers into believing that all other molded footwear is made of inferior material compared to Crocs’ molded footwear.

The Federal Circuit agreed with Dawgs that these allegations about Crocs’ advertisement statements were directed to the nature, characteristics, or qualities of Crocs’ shoes. The Federal Circuit reversed the district court’s decision and determined where a party falsely claims that it possesses a patent on a product feature and advertises that product feature in a manner that causes consumers to be misled about the nature, characteristics, or qualities of its product that party violates Section 43(a)(1)(B) of the Lanham Act,, 15 U.S.C. § 1125(a)(1)(B). Thus, the Federal Circuit reinstated Dawgs’ Section 43(a)(1)(B) claim based on its holding that Section 43(a)(1)(B) can reach misrepresentations about intangibles.

Crocs argued that the Circuits are divided 3-2 over the Lanham Act’s application to misrepresentations about intangible property. Three circuits, the Second, Sixth, and Ninth Circuits have held that the Lanham Act’s false advertising cause of action does not reach statements that concern a product’s intangibles, like its intellectual property status. Two circuits, including the Federal Circuit, have held the opposite. Crocs asserted that the Federal Circuit acknowledged this split, yet denied a petition for rehearing en banc to correct it.

Crocs argued that the Federal Circuit’s interpretation of Section 43(a)(1)(B) cannot be squared with the text, structure, or purpose of the Lanham Act. It disregards the statute’s plain language, blurs the careful distinctions Congress drew between different species of unfair competition, and permits expansive liability untethered to the product-specific falsehoods the statute actually regulates. Crocs also contended that it creates intolerable overlap with intellectual property regimes that Congress crafted to operate with different rules, limits, and remedies. Further, it opens the door to unchecked litigation over generalized marketing language that has never been the Lanham Act’s concern.

According to Crocs, the dangers of the Federal Circuit’s expansive interpretation are particularly acute given that the Lanham Act is uniquely powerful and easy to invoke. Crocs noted that Section 43(a)(1)(B) has been held to impose liability for false advertising without requiring any proof of the defendant’s state of mind. Further, it authorizes expansive remedies, including injunctions, disgorgement, damages, and attorney fees. Thus, the Federal Circuit’s expansive reading exposes businesses to unpredictable and costly litigation over commonplace marketing language, incentivizes strategic lawsuits aimed at inflicting competitive harm, and distorts the careful balance Congress struck between robust enforcement and defined statutory limits. Additionally, Crocs claimed that permitting false advertising claims based on misrepresentations about patent status would gut the critical limitations Congress imposed on false patent marking suits.

Crocs noted that the Supreme Court has consistently declined to read the Lanham Act as a catch-all for commercial misstatements divorced from trademark principles or product-specific deception. Crocs claimed that this case is an ideal vehicle for the Supreme Court to resolve the circuit split. According to Crocs, if the Supreme Court does not intercede, the circuit split will persist, resulting in starkly inconsistent outcomes based solely on the circuit with jurisdiction over the suit.

The Case is Dkt. No. 25-75.

Attorneys: Lisa Schiavo Blatt (Williams & Connolly LLP) for Crocs, Inc.

Companies: Crocs, Inc.; Double Diamond Distribution, Ltd.; U.S.A. Dawgs, Inc.; Mojave Desert Holdings, LLC

News: Patent Trademark FedCirNews GCNNews