IP Law Daily, TRADEMARK—Fed. Cir.: Crocs’ appeal from ITC’s no-violation finding against U.S. and Chinese shoe retailers dismissed, (Jan 9, 2026)

By Saurabh Kashyap, B.A., M.A., LL.B., LL.M.

Crocs failed to timely challenge the no-violation finding; ITC properly limited its exclusion order to non-participating exporters after presuming the allegations as true.

In a precedential decision, the U.S. Court of Appeals for the Federal Circuit dismissed in part and affirmed in part Crocs, Inc.’s appeal from a final determination of the U.S. International Trade Commission (ITC) under Section 337 of the Tariff Act of 1930. The court ruled that Crocs’s challenge to the ITC’s no-violation finding against certain participating respondents was untimely and therefore jurisdictionally barred. However, the court affirmed the ITC’s issuance of a limited exclusion order (LEO) against other non-participating respondents found in default, rejecting Crocs’s request for a broader general exclusion order (Crocs, Inc. v. ITC, No. 24-1300 (Fed. Cir. Jan. 8, 2026)).

Background. The appellant, Crocs, Inc., is a U.S. footwear company known for its Classic Clog shoes. The appellee, the ITC, is an independent agency tasked with investigating unfair trade practices, including the importation of goods that infringe intellectual property rights. The Active Respondents consisted of two U.S.-based retailers and distributors of casual footwear and one Chinese online footwear brand known for selling clog-style shoes in the U.S. market. These parties actively participated in the ITC proceedings, contesting the trademark infringement allegations. The Defaulting Respondents were all China-based exporters of clog-style footwear, who failed to respond to the complaint and were declared in default by the Commission.

Crocs asserted two registered trademarks in the investigation: U.S. Trademark No. 5,149,328 and U.S. Trademark No. 5,273,875. Referred to collectively as the “3D Marks,” these trademarks protect the three-dimensional features of Crocs’s Classic Clog design, including its perforated upper, strap configuration, and overall shape.

Crocs filed a Section 337 complaint in June 2021, alleging that multiple respondents were importing and selling footwear that infringed or diluted the 3D Marks. Crocs sought a general exclusion order (GEO) or, in the alternative, an LEO. The ITC instituted an investigation in July 2021. The Active Respondents participated in an evidentiary hearing, while the Defaulting Respondents were held in default. In January 2023, an Administrative Law Judge (ALJ) issued an Initial Determination finding no violation by the Active Respondents and finding Crocs had waived its claims against the Defaulting Respondents.

The ITC partially reviewed the Initial Determination and, on September 14, 2023, affirmed the no-violation finding for the Active Respondents, citing Crocs’s failure to prove likelihood of confusion or dilution. However, the ITC set aside the ALJ’s waiver findings as to the Defaulting Respondents and presumed the complaint’s allegations to be true under 19 U.S.C. § 1337(g)(1), issuing an LEO against them. Crocs appealed, challenging both the no-violation finding and the limitation of the remedy to an LEO.

Appeal untimely. The Federal Circuit dismissed Crocs’s appeal against the Active Respondents as untimely under 19 U.S.C. § 1337(c), which mandates that a party adversely affected by a final Commission determination must file its appeal within 60 days. Crocs argued that the ITC’s decision only became final after the expiration of the 60-day Presidential review period under § 1337(j), applicable when the Commission finds a violation and issues a remedy. But the court rejected that interpretation, explaining that the no-violation finding as to the Active Respondents was final on issuance and not subject to presidential review.

Citing Allied Corp. v. United States Int’l Trade Comm’n, 782 F.2d 982 (Fed. Cir. 1986), and Broadcom Corp. v. Int’l Trade Comm’n, 542 F.3d 894 (Fed. Cir. 2008), the court reiterated that different parts of an ITC determination can become final at different times depending on whether a remedy is issued. Because Crocs filed its notice of appeal on December 22, 2023—more than 60 days after the September 14, 2023, no-violation finding—the court dismissed the appeal as to the Active Respondents. The court also found Crocs waived any equitable tolling argument by failing to raise it in its opening brief, citing SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1319 (Fed. Cir. 2006).

LEO against Defaulting Respondents. Turning to the Defaulting Respondents, the court affirmed the ITC’s issuance of a limited exclusion order under Section 337(g)(1), rejecting Crocs’s contention that it was entitled to a general exclusion order. The court held that the Commission acted within its discretion and followed the statutory framework.

Section 337(g)(1) provides that when a party is found in default, the Commission shall presume the facts in the complaint to be true and, upon request, “issue an exclusion from entry or a cease and desist order, or both, limited to that person,” unless public interest factors weigh against such relief. The court found that the ITC appropriately relied on this provision in issuing an LEO against the Defaulting Respondents. Because Crocs did not seek relief “solely” under § 1337(g)(2)—which allows for a GEO only when all respondents default—it could not obtain broader relief.

The Federal Circuit emphasized the ITC’s broad discretion in tailoring remedies, citing Philip Morris Prods. S.A. v. Int’l Trade Comm’n, 63 F.4th 1328, 1339–40 (Fed. Cir. 2023), and Viscofan, S.A. v. U.S. Int’l Trade Comm’n, 787 F.2d 544, 548 (Fed. Cir. 1986). The court concluded that the LEO was not arbitrary, capricious, or an abuse of discretion.

The Case is No. 24-1300.

Judge: Stoll, K.

Attorneys: David A. Caine (Arnold & Porter Kaye Scholer LLP) for Crocs, Inc. Carl Paul Bretscher for the ITC.

Companies: Crocs, Inc.

Cases: Trademark FedCirNews