Crocs Inc, maker of the foam clogs beloved by chefs and toddlers, has been accused of false advertising. The company has, for several decades, described its foam technology as “patented” despite the fact it did not, in fact, hold a patent. The Federal Circuit will now decide whether the description is in breach of the U.S. Lanham Act’s false advertising prohibition.

The accusation came from Croc’s competitor USA Dawgs Inc, a company who has been embroiled in a long running legal battle with Crocs. Crocs originally sued Dawgs for infringing patents covering design features and a pivoting strap back in 2006. In response, Dawgs countersued over Crocs’ description of croslite – the material used in its shoes – as patented when it is not. Croslite is a common ethyl vinyl acetate used by multiple other shoemakers. Dawgs alleged that this misled customers into believing that Crocs were made from a material “different than any other footwear” and that the company “owns the rights” to Croslite.

The Lanham Act allows for a civil action for false advertising. However, the question of whether false claims about patent protection are actionable under the Act, has not been before the US Supreme Court or the Federal Circuits Courts previously. Crocs claim that because a more specific statute already governs patents and false marking, such claims should not be shoehorned into the Lanham Act’s more general false advertising provision.

The case is Crocs, Inc. v. Effervescent, Inc., Fed. Cir., No. 22-2160.