Clogs maker Crocs urged the Federal Circuit on Thursday to reverse a decision from the U.S. International Trade Commission not to impose a ban on imports that the Colorado-based company says are confusingly similar to its own footwear, arguing that the ITC erred in how it considered Crocs' fame and its competitors' intent to confuse consumers.

Before a three-judge panel weighs the strength of those arguments, however, Crocs will have to convince the jurists that it appealed the ITC's determination in time.

"Are the merits before us? Did you file in time?" U.S. Circuit Judge Alan Lourie asked Crocs' counsel David Caine of Arnold & Porter Kaye Scholer LLP.

Caine said the appeal is timely because the ITC's determination, issued Sept. 14, 2023, did not become final until a 60-day presidential review period. He said a "final determination" in this case refers "to a statement of decision."

"Here we have a single statement of decision that was the subject of notice in the Federal Register," he said. "And it is that single statement of determination that includes all of the relief set forth therein, all of the findings and conclusions, both the findings and conclusions that were adverse to Crocs and those that were in favor."

Crocs is appealing the agency's 2023 holding that affirmed the determination of ITC Administrative Law Judge Bryan F. Moore. The judge concluded that there was no violation of Section 337 of the Tariff Act because Crocs failed to show infringement by a Chinese company that sells shoes under the brand name Amoji, a New York-based business called Orly Shoe Corp. and Hobby Lobby, which ordered shoes from Orly.

The ITC launched an investigation into allegedly infringing imports of Crocs' clogs in 2021 after a complaint from the company, which sought a general exclusion order against two dozen companies, including Skechers and Walmart. By the time Judge Moore issued his decision, the only companies that had not settled with Crocs or that failed to appear in court were Amoji, Orly and Hobby Lobby.

Carl Bretscher, who argued on behalf of the ITC, told the Federal Circuit that Crocs missed its deadline to appeal, saying it was filed more than five weeks after the 60-day presidential review period. Bretscher said "finality" in this context means that "there's a decision on the merits of whether to exclude certain products."

"When the commission issues a notice saying 'notice of final determination of no violation by participating respondents,' it's as clear as a bell," he said.

Bretscher said that even if Crocs' appeal is deemed timely, the ITC's decision was still sound and Crocs failed to establish infringement or dilution of its 3D marks because it focused on the overall design of its clogs rather than specific features.

Crocs had a design patent for its clogs that expired in 2020 so it has had to rely on its shoes' trade dress registrations for protection. The ITC has said only specific design elements of Crocs' clogs are protected, such as the pattern of holes, but that the overall clog shape is considered generic for waterproof strap clogs.

"Even though the trademarks were part of that original design, there's many, many factors that drove the success and the recognition of that shoe," Bretscher said. "Just the concept of having a plastic molded clog was new at the time. It's comfortable, it's colorful, it has that kind of lovable ugliness to it."

Caine told the Federal Circuit on Thursday that a dissent in the ITC's decision from an agency commissioner correctly noted that it was wrong to weigh intent against a likelihood of confusion because a lack of intent "is largely irrelevant in determining if consumers are likely to be confused."

But even if intent was a neutral factor, Caine said, it should have weighed in his client's favor, noting that Orly referred to its "gator product" as Crocs in communications with suppliers and that Amoji bought the "Crocs" keyword.

"That is strong evidence of intent," Caine said.

Crocs' also disagrees with the ITC's conclusion that its design for clogs is generic and not famous, with Caine saying they "are instantly recognizable."

"Everyone in this courtroom, if they looked at those shoes, would see them and recognize the 3D marks, because they're that well known," Caine said, adding that the ITC was wrong to weigh evidence of Crocs' fame as neutral "on the basis that Crocs had not shown advertising of the registered trademarks" on its own.

Judges Alan D. Lourie and Kara F. Stoll sat on the panel for the Federal Circuit, with Judge John H. Chun of the Western District of Washington sitting by designation.

Crocs is represented by Michael Berta, David A. Caine, Sean Michael Callagy, Isaac Ramsey, Mark Samartino and Andrew Tutt of Arnold & Porter Kaye Scholer LLP.

The ITC is represented by Carl Paul Bretscher, Amanda Pitcher Fisherow and Houda Morad of the Office of the General Counsel.

The case is Crocs Inc. v. ITC, case number 24-1300, in the U.S. Court of Appeals for the Federal Circuit.