Top court upholds Delhi High Court order reviving Crocs’ passing off suits against Indian footwear makers, leaving legal questions open
The Supreme Court on Friday dismissed petitions filed by Bata India and Liberty Shoes that sought to challenge a Delhi High Court judgment which revived Crocs, USA’s passing off suits against several Indian footwear manufacturers.
A Bench of Justices Sanjay Kumar and Alok Aradhe said, “We are not inclined to entertain this plea. The Delhi High Court has merely restored the suits for consideration by the trial court … We, however, make it clear that the trial court of the learned single judge shall consider the matters uninfluenced by any observations made by the division bench or by the dismissal of these SLPs. Question of law kept open.”
The litigation revolves around Crocs’ complaint that companies such as Bata, Liberty, Relaxo, Action Shoes, Aqualite and Bioworld Merchandising copied the shape, configuration and perforated pattern of its foam clogs. Crocs described these features as its trade dress and argued that the imitation misleads consumers and exploits the reputation it earned since its products entered the market in 2004.
The dispute first came before the Delhi High Court when a single judge dismissed all six passing off suits in February 2019. The judge reasoned that Crocs could not rely on passing off to protect the same product configuration that was already covered by a registered design. The court stated that the Designs Act gives only a limited-term protection and Crocs could not extend that protection through common law remedies.
In July 2025, a Division Bench of Justices C Hari Shankar and Ajay Digpaul disagreed with the single judge. The Bench restored the suits and held that a passing off action can proceed even when the design is registered under the Designs Act. This prompted Bata and Liberty to move the Supreme Court.
The footwear makers argued that the Division Bench misread the Full Bench ruling in Carlsberg Breweries A/S v Som Distilleries. Liberty said that Carlsberg made it clear that once a design is registered, its owner cannot rely on passing off for the same features unless the claim is supported by something more than the design itself. The company said that letting Crocs continue with the suits would create a “dual monopoly” that stretches protection beyond the 15-year limit under Section 11 of the Designs Act. Bata’s counsel argued that a passing off claim cannot stand when the complaint is, in essence, about design infringement.
Crocs responded that passing off is a separate common law remedy based on goodwill, misrepresentation and damage. Senior Advocate Akhil Sibal said that the Designs Act does not bar a passing off action and that Crocs’ claim rests on the reputation it built, not on its expired design registration. He said that the trade dress of Crocs clogs is instantly recognisable and the company only seeks to prevent consumer confusion.
