Authored by: Jeremy J. Gustrowsky
A recent decision from the Federal Circuit highlights the importance of timely appeals and the limits of relief when some parties default in trademark disputes at the International Trade Commission (ITC). The case revolved around Crocs, Inc., the maker of the well-known Classic Clog, and its efforts to stop various companies from importing and selling shoes that allegedly infringed on Crocs’s distinctive 3D trademarks (U.S. Trademark Nos. 5,149,328 and 5,273,875).
Crocs initially filed a complaint with the ITC in 2021, targeting several companies for importing copycat footwear. The ITC split the accused companies into two groups: those who actively participated in the proceedings (“Active Respondents”) and those who defaulted by failing to appear (“Defaulting Respondents”). After a hearing, the ITC found no violation by the Active Respondents, meaning Crocs failed to prove trademark infringement or dilution against them. For the Defaulting Respondents, the ITC issued a limited exclusion order (LEO), blocking only those specific companies from importing infringing shoes.
Crocs tried to appeal both the no-violation finding for the Active Respondents and the ITC’s refusal to issue a broader general exclusion order (GEO) that would have blocked all infringing imports, not just those from the defaulting companies. However, the Federal Circuit dismissed Crocs’s appeal regarding the Active Respondents as untimely. The court explained that when the ITC issues a no-violation finding, the 60-day window to appeal starts immediately, not after the presidential review period that applies to exclusion orders. Since Crocs filed its appeal too late, the court would not consider its arguments on this point.
On the issue of the limited exclusion order, the court sided with the ITC. Under the law, when some respondents default but others participate, the ITC is only authorized to issue an exclusion order against the defaulting parties—not a general order against all potential infringers. The court found that the ITC followed the statute correctly and did not abuse its discretion by refusing Crocs’s request for a broader remedy.
This decision serves as a reminder for companies to pay close attention to appeal deadlines in ITC proceedings and to understand the limitations on remedies when not all accused parties default. Missing a deadline can mean losing the chance to challenge unfavorable decisions, and the scope of exclusion orders is strictly governed by the participation of respondents in the investigation.