Analysis Group Provides Expert Testimony on Secondary Meaning in ITC Hearing of Crocs Trademark Infringement Claim

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Mar 02, 2023, 09:00 ET

BOSTON, March 2, 2023 /PRNewswire/ -- Analysis Group, one of the largest international economics consulting firms, was retained by Orrick, Herrington & Sutcliffe LLP to develop expert testimony on secondary meaning on behalf of one of the respondents in an International Trademark Commission (ITC) hearing held to determine a trademark infringement claim brought by the footwear company Crocs.

In filing its request for a hearing, Crocs claimed that multiple respondents had violated Section 337 of the Tariff Act of 1930 by importing and selling footwear that allegedly violated registered trademarks tied to certain Crocs shoe designs. The US trademarks at issue related to so-called "3D Marks" comprising textured areas and holes on the upper and front of Crocs' Classic Clog shoes. Crocs requested that the ITC issue general exclusion orders (GEOs) and cease-and-desist orders to bar the respondents from importing and selling the at-issue products.

In the hearing, Analysis Group Vice President Michael Schreck provided testimony related to his analysis of Crocs' advertising and the question of whether Crocs' marketing practices had established secondary meaning in the 3D Marks, such that consumers recognized the 3D Marks as an identifier of source. In his finding, the administrative law judge overseeing the hearing cited Dr. Schreck's testimony in concluding that Crocs' advertisements did not support a finding of secondary meaning, writing:

Crocs has not continuously and consistently promoted the 3D Marks in its advertisements. [The evidence] also shows that, contrary to Crocs' assertions, the 3D Marks do not always appear, and certainly do not always prominently appear, in Crocs' advertisements. The exemplary advertisements also show that the 3D Marks are not visible at virtually any angle. All of this makes it unlikely that Crocs' advertisements created a mental association in the minds of consumers such that they identify the 3D Marks with Crocs.

After reviewing a wide range of expert testimony, including Dr. Schreck's, an administrative law judge determined that none of the respondents had infringed on the trademarks in dispute, and none of the claimed trademarks had acquired secondary meaning. In finding that no trademark infringement had occurred, the judge also denied Crocs' request to halt the importation of the respondents' at-issue shoes and to enjoin the sales and marketing of those products by retailers and distributors in the US.

An Analysis Group team led by Managing Principal Aaron Yeater worked with Dr. Schreck in preparing his testimony and developing his expert report.

To learn more about Analysis Group's capabilities, visit AnalysisGroup.com

About Analysis Group:

Analysis Group is one of the largest international economics consulting firms, with more than 1,000 professionals across 14 offices in North America, Europe, and Asia. Since 1981, we have provided expertise in economics, finance, health care analytics, and strategy to top law firms, Fortune Global 500 companies, and government agencies worldwide. Our internal experts, together with our network of affiliated experts from academia, industry, and government, offer our clients exceptional breadth and depth of expertise.

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SOURCE Analysis Group