Wilson Sonsini Goodrich & Rosati

Wilson Sonsini Goodrich & Rosati P R O F E S S I 0 N A L C 0 R P 0 R A T I O N

March 3 1, 2006

VIA HAND DELIVERY a a Secretary Marilyn R. Abbott United States International Trade Commission 500 E Street, S.W. Washington, DC 20436

n

33ClrE? NLUSER

Office of the Secretary

Int,’l Trade Cornmisston

Re: In the Matter of Certain Foam Footwear, Inv. No. 337-TA--

Dear Secretary Abbott:

650 Page Mill Road to, CA 94304-1050

HONE 650.493.9300 FAX 650.493.681 1

www.wsgr.com , I

Enclosed for filing on behalf of Crocs, Inc. (“Crocs”) are the following documents in support of Crocs’s request that the Commission commence an investigation under section 337 of the Tariff Act of 1930. Pursuant to the Commission Rules of Practice and Procedure, a request ,for confidential treatment of certain confidential information contained in the complaint, exhibits, and appendices is concurrently being transmitted herewith. Enclosed is a listing of the contents of each box. Accordingly, Crocs submits the following documents:

1. One (1) original and twelve (12) copies of Crocs’s verified Complaint pursuant to ITC Rules 201.6(c), 210.8(a) and the November 16, 2001 Commission Order (original and one copy unbound, without tabs pursuant to ITC Rules 210.8(d));

2. One (1) original and six (6) copies of the confidential version of the exhibits to the Complaint pursuant to ITC Rule 201.6(c), 210.8(a), and the November 16, 2001 Commission Order (original and one copy unbound, without tabs pursuant to ITC Rule 210.8(d));

3. One (1) original and six (6) copies of the non-confidential version of the exhibits to the Complaint pursuant to ITC Rules 210.4(f)(3)(i), 210.8(a) and the November 16, 2001 Commission Order (original and one copy unbound, without tabs pursuant to ITC Rule 210.8(d));

4. Eleven (1 1) copies of the Complaint, eleven (1 1) copies of the confidential exhibits, and eleven (1 1) copies of the non-confidential exhibits for service upon each of the proposed respondents Australia Unlimited, Inc., Cheng’s Enterprises Inc., Collective Licensing International, LLC, D. Myers & Sons, Inc., Double Diamond Distribution Inc., Effervescent Inc., Gen-X Sprots, Inc., Holey Soles Holding Ltd, Inter-Pacific Trading Corp, Pali Hawaii and Shaka Shoes, pursuant to ITC Rules 210.8(a);

5 . One (1) copy of the Complaint and one (1) copy of the non-confidential exhibits for service on the Embassy of Canada pursuant to ITC Rules 210.8(a);

PAL0 ALTO AUSTIN NEW YORK RESTON SALT LAKE CITY SAN DIEGO SAN FRANCISCO SEATTLE

Wilson Sonsini Goodrich & Rosati P R O F E S S I O N A L CO R P O R A T 1 0 N

Secretary Marilyn R. Abbott March 3 1 , 2006

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One (1) certified copy of the U.S. Patent No. 6,993,858 B2 (“the ‘858 patent”) is included as Exhibit 1 of the Complaint;

One (1) copy of the U.S. Patent No. D517,789 (“the ‘789 patent”) is included as Exhibit 2 of the Complaint (a certified copy will be provided, pursuant to ITC Rule 210.12(a)(9)(ii), when received from the United States Patent and Trademark Office);

Copies of the assignments for the ‘858 and ‘789 patent are included as Exhibits 27 and 29 of the Complaint, respectively (certified copies will be provided, pursuant to ITC Rule 210.12(a)(9)(ii), when received from the United States Patent and Trademark Office);

Appendix A: Certified copy (and three additional copies) of the file history of U.S. Patent No. 6,993,858 B2;

Appendix B: (A Certified copy and three additional copies of the U.S. Patent and Trademark Office prosecution history for U.S. No. D517,789 will be provided, pursuant to ITC Rule 210.12(a)(9)(ii), when received from the United States Patent and Trademark Office);

Appendix C: Certified copy and three additional copies of the U.S. Patent and Trademark Office prosecution history for U.S. Application No. 60/473,360;

Appendix D: Certified copy and three additional copies of the U.S. Patent and Trademark Office prosecution history for U.S. Application No. 60/473,37 1;

Appendix E: Certified copy and three additional copies of the U.S. Patent and Trademark Office prosecution history for US. Application No. 10/602,416;

Appendix F: (A Certified copy and three additional copies of the U.S. Patent and Trademark Office prosecution history for U.S. Application No. 10/803,569 will be provided, pursuant to ITC Rule 210.12(a)(9)(ii), when received from the United States Patent and Trademark Office);

Eleven (1 1) additional copies of the Appendices A-F for service upon each of the proposed respondents Australia Unlimited, Inc., Cheng’s Enterprises Inc., Collective Licensing International, LLC, D. Myers & Sons, Inc., Double Diamond Distribution Inc., Effervescent Inc., Gen-X Sprots, Inc., Holey Soles Holding Ltd, Inter-Pacific Trading Corp, Pali Hawaii and Shaka Shoes, pursuant to ITC Rules 210.8(a);

C:WrPortbl\PALIB 1 \KDPU849805_ I .DOC

Wilson Sonsini Goodrich 81. Rosati P R O F E S S 1 O N A L C O R P O RAT1 O N

Secretary Marilyn R. Abbott March 3 1,2006

16. One (1) copy of Appendices A-F for service on the Embassy of Canada pursuant to ITC Rules 210.8(a); and

17. Physical exhibits A-R pursuant to ITC rule 210.12(b).

A letter and certification pursuant to ITC Rules 201.6(b) and 210.5(d) requesting confidential treatment of the entirety of Confidential Exhibits 6 with confidential exhibits A-E, 26 and 29.

Respectfully submitted,

WILSON SONSINI GOODRICH & ROSATI Professional Corporation

James C. Otteson

Enclosures

C:WrPortblWALIB 1 KDPU849805-1 .DOC

UNITED STATES INTERNATIONAL TRADE COMMISSION

WASHINGTON, D.C. 20436

1 In the Matter of 1

1 CERTAIN FOAM FOOTWEAR )

) Investigation No.337-TA-

COMPLAINT UNDER SECTION 337 OF THE TARIFF ACT OF 1930, AS AMENDED

Complainant: Crocs, Inc. 6273 Monarch Park Place Niwot, Colorado 80503 Telephone: (303) 468-4260

Counsel for Complainant: Michael A. Ladra James C. Otteson Thomas T. Carmack WILSON SONSINI GOODRICH & ROSATI 650 Page Mill Road Pa\o Alto, California 94304 Telephone: (650) 493-9300

Michael A. Berta Ariana M. Chung-Han WILSON SONSINI GOODFUCH & ROSATI One Market, Spear Street Tower Suite 3300 San Francisco, California 94105 Telephone: (41 5) 947-2000

Respondents: Australia Unlimited, Inc. 2638 E. Marginal Way S. Seattle, WA 98134

Cheng’s Enterprises Inc. 68 Broad Street Carlstadt, NJ 07072

Collective Licensing International, LLC 800 Englewood Parkway Englewood, CO 801 10

D. Myers & Sons, Inc. 2020 Sherwood Avenue Baltimore, MD 21218

Double Diamond Distribution Ltd. 3715A Thatcher Avenue, Saskatoon, SIC, Canada S7R 1B8

Effiescent Inc. 24 Scott Road Fitchburg, MA 01420

Gen-X Sports, Inc. 18601 Wilmington Avenue Carson, CA 90796

Holey Soles Holding Ltd. 1628 West 75* Ave. Vancouver, Canada

V6P 6G2

. Inter-Pacific Trading Corp. 2257 Colby Avenue Los Angeles, California 90064

Pali Hawaii 501 Sumner St., Suite 613 Honolulu, HI 968 17

Shaka Shoes 77-6360 Halawai Place Kailua-Kona, HI 96740

TABLE OF CONTENTS

Page

INTRODUCTION .............................................................................................................. 1

COMPLAINANT CROCS, INC. ....................................................................................... 3

RESPONDENT AUSTRALIA UNLIMITED, INC ........................................................... 5

RESPONDENT CHENG’S ENTERPRISES INC. ............................................................ 5

RESPONDENT COLLECTIVE LICENSING INTERNATIONAL, LLC ........................ 6

RESPONDENT D. MYERS & SONS, INC ....................................................................... 6

RESPONDENT DOUBLE DIAMOND DISTRIBUTION LTD. ...................................... 7

RESPONDENT EFFERVESCENT INC. ........................................................................... 7

RESPONDENT GEN-X SPORTS INC .............................................................................. 7

RESPONDENT HOLEY SOLES HOLDING LTD ........................................................... 8

RESPONDENT INTER-PACIFIC TRADING CORPORATION ..................................... 9

RESPONDENT PAL1 HAWAII ......................................................................................... 9

RESPONDENT SHAKA SHOES ...................................................................................... 9

UNKNOWN MANUFACTURERS ................................................................................. 10

THE FOOTWEAR INDUSTRY ...................................................................................... 11

THE ‘858 PATENT .......................................................................................................... 11

THE ‘789 PATENT .......................................................................................................... 13

I.

II.

m. Iv.

V.

VI.

VII.

Vm.

K.

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XI.

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xm. w. xv. XVI.

XVII.

XVIII. INFRINGEMENT OF THE ‘858 PATENT ..................................................................... 15

XIX. INFRINGEMENT OF THE ‘789 PATENT ..................................................................... 17

XX. CROCS’S TRADE DRESS .............................................................................................. 19

XXI. INFRINGEMENT OF THE CROCS TRADE DRESS .................................................... 23

XXII. IMPORTATION BY RESPONDENTS ........................................................................... 24

Xxm. DOMESTIC INDUSTRY ................................................................................................. 27

XXIV. INJURY ............................................................................................................................ 30

XXV. RELIEF ............................................................................................................................. 30

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EXHIBITS TO COMPLAINT

Exhibit 1: Certified copy of U.S. Patent No. 6,993,858 B2

Exhibit 2: Certified copy of U.S. Patent No. D517,789

Exhibit 3:

Exhibit 4: Marketing brochures

Prospectus, dated February 7,2006

Exhibit 5 : Press release, dated February 8,2006

Confidential Exhibit 6: Confidential Declaration of Lyndon V. Hanson III in Support of Complaint

Confidential Hanson Exhibit A - Domestic Marketing Expenses

Confidential Hanson Exhibit B - Facilities Dedicated to Activities related to Domestic Industry Products

Domestic Industry Products Confidential Hanson Exhibit C - Revenue and Sales Information of Crocs

Confidential Hanson Exhibit D - Domestic Research and Development

Confidential Hanson Exhibit E - United States Employees Involved in Activities Relating to the Crocs Products that Incorporate the Asserted Patent

Exhibit 7: Various press releases and articles regarding awards

Exhibit 8: Website excerpt, www.nothinz.codmainmenu.htm1

Exhibit 9: Declaration of Kimberlie Wierema in Support of Complaint

Wierema Exhibit A - Boulder Army Store sales receipt

Wierema Exhibit B - Photographs of the N O W shoes

Wierema Exhibit C - Payless Shoesource sales receipt

Wierema Exhibit D - Photographs of the Airwalk shoes

Wierema Exhibit E - Photographs of the Gators shoes

Wierema Exhibit F - Dawgs Clogs sales receipt

Wierema Exhibit G - Contact information for Dawgs Clogs

Wierema Exhibit H - Photographs of the Dawgs Clogs shoes

Wierema Exhibit I - Gardenwartz Outdoors sales receipt

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Wierema Exhibit J - Photographs of the Waldies shoes

Wierema Exhibit K - Shoe Carnival sales receipt

Wierema Exhibit L - Photographs of the Komodo shoes

Wierema Exhibit M - Walgreens sales receipt

Wierema Exhibit N - Photographs of the Sunsurfer shoes

Wierema Exhibit 0 - Lavahut sales receipt

Wierema Exhibit P - Contact information for Lavahut

Wierema Exhibit Q - Photographs of the Pali Hawaii Clogs

Wierema Exhibit R - Shaka Shoes sales receipt and order form

Wierema Exhibit S - Photographs of the Shaka shoes

Wierema Exhibit T - Wal-Mart sales receipt

Wierema Exhibit U - Photographs of the No Boundaries shoes

Wierema Exhibit V - Sears sales receipt

Wierema Exhibit W - Photographs of the Bare Traps shoes

Wierema Exhibit X - K-Mart sales receipt

Wierema Exhibit Y - Photographs of the Soh0 shoes

Wierema Exhibit Z - Shoe Carnival sales receipt

Wierema Exhibit AA - Photographs of the Aqua Duck shoes

Exhibit 10: Website excerpt, www.Oldfiiendslippers.com/shoponline.htm

Exhibit 11: Declaration of Thomas T. Carmack in Support of Complaint

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Carmack Exhibit A - Claim Chart for NothingZ footwear re ‘858 patent

Carmack Exhibit B - Claim Chart for Easy USA Eva Clogs re ‘858 patent

Carmack Exhibit C - Claim Chart for Airwalk footwear re ‘858 patent

Carmack Exhibit D - Claim Chart for Gators footwear re ‘858 patent

Carmack Exhibit E - Claim Chart for Dawgs Clogs re ‘858 patent

Carmack Exhibit F - Claim Chart for Waldies footwear re ‘858 patent

Carmack Exhibit G - Claim Chart for Komodo footwear re ‘858 patent

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Carmack Exhibit H - Claim Chart for Explorer footwear re ‘858 patent

Carmack Exhibit I - Claim Chart for Sunsurfer footwear re ‘858 patent

Carmack Exhibit J - Claim Chart for Clogz by Pali Hawaii re ‘858 patent

Carmack Exhibit K - Claim Chart for Shaka Shoes re ‘858 patent

Carmack Exhibit L - Claim Chart for No Boundaries footwear re ‘858 patent

Carmack Exhibit M - Claim Chart for the Target footwear re ‘858 patent

Carmack Exhibit N - Claim Chart for Bare Traps footwear re ‘858 patent

Carmack Exhibit 0 - Claim Chart for NothingZ footwear re ‘789 patent

Carmack Exhibit P - Claim Chart for Easy USA Eva Clogs re ‘789 patent

Carmack Exhibit Q - Claim Chart for Airwalk footwear re ‘789 patent

Carmack Exhibit R - Claim Chart for Gators footwear re ‘789 patent

Carmack Exhibit S - Claim Chart for Dawgs Clogs re ‘789 patent

Carmack Exhibit T - Claim Chart for Waldies footwear re ‘789 patent

Carmack Exhibit U - Claim Chart for Komodo footwear re ‘789 patent

Carmack Exhibit V - Claim Chart for Explorer footwear re ‘789 patent

Carmack Exhibit W - Claim Chart for Sunsurfer footwear re ‘789 patent

Carmack Exhibit X - Claim Chart for Clogz by Pali Hawaii re ‘789 patent

Carmack Exhibit Y - Claim Chart for Shaka Shoes re ‘789 patent

Carmack Exhibit Z -

Carmack Exhibit AA - Claim Chart for Bare Traps footwear re ‘789 patent

Carmack Exhibit BB - Claim Chart for Target footwear re ‘789 patent

Carmack Exhibit CC - Claim Chart for Aqua Ducks footwear re ‘789 patent

Claim Chart for No Boundaries footwear re ‘789 patent

Carmack Exhibit DD - Claim Chart for Sohos footwear re ‘789 patent

Carmack Exhibit EE - List of Crocs products that incorporate clams 1 and/or 2

Carmack Exhibit FF - Claim Chart for Beach footwear by Crocs re ‘858 patent

of the ‘858 patent and the ‘789 patent

Carmack Exhibit GG - Claim Chart for Cayman footwear by Crocs re ‘858 patent

-iv-

Carmack Exhibit HH - Claim Chart for Kids Cayman fottowear by Crocs re ‘858 patent

Carmack Exhibit II - Claim Chart for Chubb footwear by Crocs re ‘858 patent

Carmack Exhibit JJ - Claim Chart for Cloud footwear by Crocs re ‘858 patent

Carmack Exhibit KK - Claim Chart for Aspen footwear by Crocs re ‘858 patent

Carmack Exhibit LL - Claim Chart for Relief footwear by Crocs re ‘858 patent

Carmack Exhibit MM - Claim Chart for Professional footwear by Crocs re ‘858

Carmack Exhibit NN - Claim Chart for Highland footwear by Crocs re ‘858

patent

patent

Carmack Exhibit 00 - Claim Chart for Beach footwear by Crocs re ‘789 patent

Carmack Exhibit PP - Claim Chart for Cayman footwear by Crocs re ‘789

Carmack Exhibit QQ - Claim Chart for Kids Cayman footwear by Crocs re ‘789

patent

patent

Carmack Exhibit RR - Claim Chart for Chubb footwear by Crocs re ‘789 patent

Carmack Exhibit SS - Claim Chart for Cloud footwear by Crocs re ‘789 patent

Carmack Exhibit TT - Wal-Mart sales receipt II

Exhibit 12: Website excerpt, www.chengsusa.com

Exhibit 13: Declaration of Stephanie Koon in Support of Complaint

Koon Exhibit A - Childish Things sales receipt

Koon Exhibit B - Photographs of the Easy USA Eva Clogs

Koon Exhibit C - Elevation Outfitters sales receipt

Koon Exhibit D - Photographs of the Holey Soles shoes

Koon Exhibit E - Target sales receipt

Koon Exhibit F - Photographs for the shoes purchased at Target

Exhibit 14: Westlaw search results for Collective Licensing (Airwalk)

Exhibit 15: Website excerpt, www.dmyers.com/FalVPageOl .htm

Exhibit 16: Website excerpt, www.dawgsclogs.com/Beach-Dawgs-1 .html

Exhibit 17: Website excerpt, www.waldies.net

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Exhibit 18: The Forzani Group Ltd. 2005 Annual Report

Exhibit 19: Holey Soles Holdings Ltd v. Foam Creations, Inc. and Crocs, Inc., Case No. 05 CV 6893, filed August 2,2005 (S.D.N.Y.)

Exhibit 20: Website excerpt, www.holeysoles.com/flashsite/main.htm

Exhibit 2 1 : Website excerpt, www.holeysoles.com/flashsite/main.htm

Exhibit 22: Comprehensive Dunn & Bradstreet Report on Inter-Pacific Corporation, dated March 14,2006

Exhibit 23: Website excerpt, www.palihawaii.coml7.htm

Exhibit 24: Website excerpt, www.shakashoes.com/index.htm

Exhibit 25: Website ordering info excerpt, www.shakashoes.codorder.htm1

Confidential Exhibit 26: Crocs Jnc.’s Initial Public Offering Roadshow Presentation

Exhibit 27: Certified copy of assignment records for U.S. Patent No. 6,993,858 B2

Confidential Exhibit 28: List of Foreign Patents re to U.S. Patent No. 6,993,858 B2

Exhibit 29: Certified copy of assignment records for U.S. Patent No. D517,789

Exhibit 30: Website excerpt, www.shakashoes.codnews.htm1

Exhibit 3 1 : Harmonized Tariff Schedules for Footwear

*

Physical Exhibit A:

Physical Exhibit B:

Physical Exhibit C:

Physical Exhibit D:

Physical Exhibit E:

Physical Exhibit F:

Physical Exhibit G:

Physical Exhibit H:

Physical Exhibit I:

Physical Exhibit J:

Physical Exhibit K

Phpical Exhibit L:

Physical Exhibit M:

Physical Exhibit N:

Physical Exhibit 0:

Physical Exhibit P:

Physical Exhibit Q:

Physical Exhibit R:

Sample of Australia Unlimited, Inc.’s Nothingz shoes - dark blue

Sample of Cheng’s Enterprises Inc.’s Shoes - White

Sample of Collective Licensing International, LLC’s Airwalk Shoes - green

Sample of D. Myers & Sons, Inc.’s Gators Shoes -bright green

Sample of Double Diamond Distribution Inc.’s Dawgs Shoes - dark blue

Sample of Effervescent Inc.3 Waldies Shoes -blue

Sample of Gen-X Sports, Inc.’s Komodo Shoes - orange

Sample of Holey Soles Holding Ltd.’s Shoes - yellow

Sample of Inter-Pacific Trading Cop’s Sunsurfers - light blue

Sample of Pali Hawaii’s C log Shoes - yellow

Sample of Shaka Shoes - red

Sample of Unknown Manufacturer’s Nobo Shoes - dark green

Sample of Unknown Manufacturer’s Nobo Shoes -bright green

Sample of Unknown Manufacturer’s Nobo Shoes -bright green

Sample of Unknown Manufacturer’s Bare Traps Shoes - black

Sample of Unknown Manufacture’s Shoes sold at Target - beige

Sample of Unknown Manufacturer’s Aqua Ducks Shoes - white

Sample of Unknown Manufacturer’s Soh0 Shoes - purple

APPENDICES TO COMPLAINT

Appendix A - File History for U.S. Patent No. 6,993,858 B2

Appendix B - File History for U.S. Patent No. D517,789

Appendix C - File History for U.S. Patent Application No. 60/473,360

Appendix D - File History for U.S. Patent Application No. 601473,371

Appendix E - File History for U.S. Patent Application No. 10/602,416

Appendix F - File History for U.S. Patent Application No. 10/803,569

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I. INTRODUCTION

1. Crocs, Inc. (“Crocs” or “Complainant”) files this Complaint pursuant to Section

337 of the Tariff Act of 1930 [19 U.S.C. 0 1337 (“Section 337”)], based on the unlawful

importation into the United States, the sale for importation andor the sale within the United

States after importation of certain foam footwear.

2. The proposed Respondents are: Australia Unlimited, Inc. (“Australia

Unlimited”); Cheng’s Enterprises Inc. (“Cheng’s”); Collective Licensing International

(“Collective Licensing”); D. Myers and Sons, Inc. (“D. Myers”); Double Diamond Distribution

Ltd. (“DDD”); Effervescent, Inc. (“Effervescent”); Gen-X Sports, Inc. (“Gen-X”); Holey Soles

Holding Ltd. (“Holey Soles”); Inter-Pacific Trading Corporation (“Inter-Pacific”); Pali Hawaii

(“Pali”); and Shaka Shoes (“Shaka”), collectively “Respondents,” as well as other

manufacturers, corporate entities, sellers or importers whose identity Crocs has not yet

ascertained (collectively “Unknown Manufacturers”). Crocs is working With diligence to

identify such Unknown Manufacturers and intends to add them as respondents as soon as

possible.

3. The accused products are imported footwear that specifically include, but are not

limited to: NothinZ footwear by Australia Unlimited; Easy USA Eva Clogs by Cheng’s;

Airwalk footwear by Collective Licensing; Gators footwear by D. Myers; Dawgs Clogs by

DDD; Waldies by Effervescent; Komodo footwear by Gen-X; Explorer footwear by Holey

Soles; Sunsurfer footwear by Inter-Pacific; Clog by Pali; and Shaka Shoes by Shaka.

Additionally, Crocs intends to accuse footwear products sold under the names No Boundaries

or NoBo, Bare Traps, Aqua Ducks, Soho, and others when it identifies the manufacturers

andor importers of such products.

4. Crocs is the owner of United States Patent No. 6,993,858 B2 (“the ‘858 Patent”)

and United States Patent No. D5 17,789 (“the ‘789 Patent”), (collectively, “the Asserted

Patents”). By this Complaint, Crocs seeks as permanent relief an order excluding fiom entry

into the United States all foam footwear, which are imported into the United States, sold for

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importation, and/or sold within the United States after importation by or on behalf of

Respondents and which infkinge one or more of the claims of the ‘858 Patent and the ‘789

Patent. Crocs also seeks permanent cease and desist orders pursuant to Section 337(f),

prohibiting importation into the United States, sales for importation, sales and/or offers for

sales within the United States after importation of any such infi-inging footwear.

5. The following accused products infringe claims 1 and 2 of the ‘858 Patent:

NothinZ footwear; Easy USA Eva Clogs; Airwalk footwear; Gators footwear; Dawgs Clogs;

Waldies footwear; Komodo footwear; Explorer footwear; Sunsurfer footwear; Pali Clogz; and

Shaka Shoes. No Boundaries footwear, Bare Traps and other footwear not sold under a

specific name produced by Unknown Manufacturers also infringe claims 1 and 2 of the ‘858

patent. A certified copy of the ‘858 Patent is attached to this Complaint as Exhibit 1. A

certified copy and three additional copies of the file history for the ‘858 Patent are included

with this Complaint as Appendix A.

6. The following accused products infringe the ‘789 Patent: NothinZ footwear;

Easy USA Eva Clogs; Airwalk footwear; Gators footwear; Dawgs Clogs; Waldies footwear;

Komodo footwear; Explorer footwear; Sunsurfer footwear; Pali Clogz; and Shaka Shoes. No

Boundaries, Bare Traps, Aqua Ducks, Soh0 and other footwear not sold under a specific name

produced by Unknown Manufacturers also irhinge the ‘789 Patent. A copy of the ‘789 Patent

is attached to this Complaint as Exhibit 2. Copies of the file history for the ‘789 Patent are

included with this Complaint as Appendix B.

7. Crocs is the owner of the Crocs Trade Dress. The “Crocs Trade Dress” consists

of the image and overall appearance of Crocs footwear. By this Complaint, Crocs seeks as

permanent relief an order excluding fiom entry into the United States all foam footwear, which

are imported into the United States, sold for importation, and/or sold within the United States

Certified copies of the ‘789 Patent and its file history were unavailable as of the filing of this Complaint. Crocs has ordered certified copies and will submit them upon receipt.

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after importation by or on behalf of Respondents and which infringe the Crocs Trade Dress.

Crocs also seeks permanent cease and desist orders pursuant to Section 337(f), prohibiting

importation into the United States, sales for importation, sales andor offers for sales within the

United States after importation of any such infringing footwear.

8. The following accused products idiinge the Crocs Trade Dress: NothinZ

footwear; Easy USA Eva Clogs; Airwalk footwear; Gators footwear; Dawgs Clogs; Waldies

footwear; Komodo footwear; Explorer footwear; Sunsurfer footwear; Pali Clog; and Shaka

Shoes. No Boundaries, Bare Traps, Aqua Ducks, Soh0 and other footwear not sold under a

specific name produced by Unknown Manufacturers also infringe the Crocs Trade Dress.

11. COMPLAINANT CROCS, INC.

9. Crocs is incorporated under the laws of the State of Delaware, with its principal

place of business at 6273 Monarch Park Place, Niwot, Colorado 80503.

10. Crocs is a rapidly growing designer, manufacturer and marketer of Crocs-

branded footwear for men, women and children, which incorporate Crocs’s proprietary closed-

cell resin material, croslite - a substantial innovation in footwear comfort and functionality.

Tl$s proprietary material enables Crocs to produce soft and lightweight, non-marking, slip and

odor-resistant shoes, which are ideal for casual wear and recreational uses such as boating,

hiking, fishing and gardening. See Complaint Ex. 3. Submitted as Complaint Exhibit 4 are

marketing brochures that show some of Crocs’s footwear products. Currently, Crocs offers 1 1

models in up to 18 colors. See Complaint Ex. 3. Crocs expects to offer 20 different models by

the end of the year. On February 8,2006, Crocs made its initial public offixing. See

Complaint Ex. 5.

1 1. Crocs was formed in July 2002, when its founders .decided to market an

innovative shoe developed and manufactured by Foam Creations, Inc. In November 2002,

Crocs introduced its first model, originally intended as a boating or outdoor shoe; however, by

2003, Crocs footwear was universally accepted as all purpose footwear for comfort and

fashion. In 2003-2004, Crocs expanded its product line, acquired Foam Creations, and added

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warehouses and shipping programs for speedy assembly and delivery. See Declaration of

Lyndon V. Hanson III in Support of Complaint (“Confidential Hanson Decl.”), attached as

Confidential Complaint Ex. 6,f4.

12. Crocs footwear is sold through a wide range of distribution channels, including

department stores, specialty footwear stores, sporting good and outdoor retailers. Crocs

footwear is also sold through a variety of specialty channels, including gift shops, Uniform

suppliers, independent bicycle dealers, specialty food retailers, and health and beauty stores.

Crocs distributes its products through over 6,500 store locations domestically and in over 40

countries worldwide. In addition, Crocs sells its footwear through its websites,

urww.crocs.com and u’ww.crocsrx.com, and in kiosks in shopping malls throughout the

country. See Confidential Hanson Decl. (Ex. 6), f l 6 and 1 1.

13. In the past three years, Crocs’s sales have increased dramatically. Crocs

recorded $1.2 million in revenues in 2003, which grew to $13.5 million in 2004. In 2005,

Crocs earned over $108 million in revenues firom sales of its footwear. See Confidential

Hanson Decl. (Ex. 6), f 12.

14. From 2003-2005, Crocs invested a substantial amount towards research and

development. Nearly all of Crocs’s total research and development expenditures were spent

domestically. See Confidential Hanson Decl. (Ex. 6), f 14.

15. Crocs was recently recognized as “Brand of the Year” by Footwear News, a

leading industry publication. Crocs was also awarded the 2005 “Item of the Year” by

Footwear Plus magazine, which called Crocs footwear the “‘It’ item of 2005.” Also in 2005,

Crocs won the “IQ Award” fiom the Boulder County Business Report, which recognizes truly

innovative products. See Complaint Ex. 7.

. . > _ 16. In addition to the Asserted Patents, Crocs had two design patents, three utility

patent applications and 20 design patent applications pending in the United States. See

Complaint Ex. 3, p. 66.

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111. RESPONDENT AUSTRALIA UNLIMITED, INC.

17. On information and belief, respondent Australia Unlimited is a Washington

corporation with its principal place of business at 3628 East Marginal Way South, Seattle,

Washington 98134.

18. On information and belief, Australia Unlimited is the manufacturer and

distributor of Nothid brand shoes, including the NothinZ clogs. See Complaint Ex. 8.

19. On information and belief, the N O W clogs are manufactured in China and

sold throughout the world, including in the United States. See Declaration of Kimberlie

Wierema in Support of Complaint (“Wierema Decl.”), attached to as Complaint Ex. 9, Ex. B.

20. On information and belief, NothinZ shoes are sold through its website,

urww.nothinz.com, which provides a link to “authorized online dealers,” www.slipDerstore.com

and www. zappos.com. See Complaint Ex. 10.

21. As set forth in Paragraphs 95-97, 11 1-1 13, and 139-143 and the Declaration of

Thomas Carmack in Support of Complaint (“Carmack Decl.”), attached as Complaint Ex. 1 1,

Australia Unlimited’s footwear infinges claims 1 and 2 of the ‘858 Patent, the ‘789 Patent and

thekCrocs Trade Dress.

IV. RESPONDENT CHENG’S ENTERPRISES, INC.

22. On information and belief, respondent Cheng’s is a New Jersey corporation,

with its principal place of business at 68 Broad Street, Carlstadt, New Jersey 07072.

23. On information and belief, Cheng’s imports, exports and distributes footwear

under the name Easy USA, including the Eva Clogs, throughout the United States. See

Complaint Ex. 12.

24. On information and belief, Eva Clogs are manufactured in China and imported

for sale in the US. See Declaration of Stephanie Koon in Support of Complaint (“Koon

Decl.”), attached as Complaint Ex. 13, Ex. B.

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25. As set forth in Paragraphs 95-96,98,111-112, 114, and 139-143 and the

Carmack Declaration, Cheng’s Eva Clogs infiinge claims 1 and 2 of the ‘858 Patent, the ‘789

Patent and the Crocs Trade Dress.

V. RESPONDENT COLLECTIVE LICENSING INTERNATIONAL, LLC

26. On information and belief, respondent Collective Licensing is a Delaware

corporation, with its principal place of business at 800 Englewood Parkway, Englewood,

Colorado 801 10.

27. On information and belief, Collective Licensing manufactures, imports and

distributes footwear, including the Airwalk shoes, throughout the United States. See Complaint

Ex. 14.

28. On information and belief, Airwalk shoes are manufactured in China and

imported for sale in the U.S. See Wierema Ex. D.

29. As set forth in Paragraphs 95-99,111-112,115, 139-143 and the Carmack

Declaration, Collective Licensing’s Airwalk footwear infiinges claims 1 and 2 of the ‘858

Patent, the ‘789 Patent and the Crocs Trade Dress.

VI. RESPONDENT D. MYERS & SONS, INC.

30. On information and belief, respondent D. Myers is a Maryland corporation With

its principal place of business at 43 1 1 Erdman Avenue, Baltimore, Maryland 2 12 13.

3 1. On information and belief, D. Myers imports and distributes footwear, including

the Gators shoes, throughout the United States. See Complaint Ex. 15.

32. On information and belief, Gators are manufactured in China and imported for

sale in the U.S. See Wierema Ex. E.

33. As set forth in Paragraphs 95-96,100,111-112,116,139-143 and the Carmack

Declaration, D. Myers’ Gators footwear infiinges claims 1 and 2 of the ‘858 Patent, the ‘789


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VII. RESPONDENT DOUBLE DIAMOND DISTRIBUTION LTD.

34. On information and belief, respondent DDD is a Canadian corporation with its

principal place of business at 3715 Thatcher Avenue, Saskatoon, SK, Canada.

35. On information and belief, DDD manufactures, distributes, markets and sells a

line of footwear called Dawgs Clogs. See Complaint Ex. 16.

36. On information and belief, Dawgs Clogs are manufactured in China and

imported for sale into the US. See Wierema Ex. H. On information and belief, Dawgs Clogs

can be purchased through its website, www.dawgsclons.com. See Complaint Ex. 16.


Declaration, DDD’s Dawgs Clogs footwear infringes claims 1 and 2 of the ‘858 Patent, the

‘789 Patent and the Crocs Trade Dress.

VIII. RESPONDENT EFFERVESCENT INC.

38. On information and belief, respondent Effervescent Inc. (“Effervescent”) is a

Delaware corporation with its principal place of business at 17 Simonds Road, Fitchburg,

Massachusetts 01420.

39. On information and belief, Effervescent manufactures, distributes, markets and

sells a line of footwear called Waldies worldwide, including in the U.S. On information and

belief, Effervescent also sells its Waldies footwear through its website, www.waldies.net. See

Complaint Ex. 17.

40. On information and belief, Waldies are manufactured in China and imported for

sale in the U.S. See Wierema Ex. J.


Declaration, Effervescent’s Waldies footwear infringes claims 1 and 2 of the ‘858 Patent, the

‘789 Patent and the Crocs Trade Dress.

Ix RESPONDENT GEN-X SPORTS INC.

42. On information and belief, respondent Gen-X is a Delaware corporation with its

principal place of business at 18601 Wilmington Avenue, Carson, California 90746.

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43. On information and belief, Gen-X manufactures, distributes, and markets a line

of sportswear, including its Komodo sandals. On information and belief, Gen-X markets and

sells its products worldwide, including in the U.S. See Complaint Ex. 18.

44. On information and belief, Gen-X’s line of Komodo sandals are manufactured

in China and imported for sale in the U.S. See Wierema Ex. L.

45. As set forth in Paragraphs 95-96, 103, 11 1-1 12, 119, 139-143 and the Carmack

Declaration, Gen-X’s footwear infiinges claims 1 and 2 of the ‘858 Patent, the ‘789 Patent and

the Crocs Trade Dress.

X. RESPONDENT HOLEY SOLES HOLDING LTD.

46. On information and belief, Holey Soles is a Canadian federally incorporated

company, which is extra-provincially registered in British Colombia, Canada. On information

and belief, Holey Soles has its principal place of business at 1628 West 75’ Avenue,

Vancouver, Canada V6P 6G2. See Complaint Ex. 19,f5.

47. On information and belief, Holey Soles is a developer, manufacturer, and

distributor of injection molded footwear, including its Explorer model. See Complaint Ex. 20.

48. On information and belief, Holey Soles footwear is manufactured in China. See

Koon Decl. (Ex. 13), Ex. D. According to its website, www.holevsoles.com, “The original

product that was available on the market was made by a Canadian manufacturer. . . . A few

years ago, Holey Soles created their own models and started producing in China. We visit the

factory regularly and are constantly improving our processes.” See Complaint Ex. 20.

49. On information and belief, Holey Soles sells its footwear throughout the world,

including in the United States. See Complaint Ex. 19, f 1. On information and belief, Holey

Soles offers its footwear for sale through its website, www.holevsoles.com, where consumers

can place an order via e-mail or phone. See Complaint Ex. 2 1.

50. As set forth in Paragraphs 95-96, 104, 11 1-1 12,120, 139-143 and the Carmack

Declaration, Holey Soles footwear infringes claims 1 and 2 of the ‘858 Patent, the ‘789 Patent

and the Crocs Trade Dress.

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XI. RESPONDENT INTER-PACIFIC TRADING CORPORATION

5 1. On information and belief, respondent Inter-Pacific is a California corporation

with its principal place of business at 2257 Colby Avenue, Los Angeles, California 90064.

52. On information and belief, Inter-Pacific is the manufacturer and distributor of

footwear, including its “Sunsurfer” models. See Complaint Ex. 22.

53. On information and belief, Inter-Pacific’s Sunsder shoes are manufactured in

China and sold throughout the world, including in the United States. See Wierema Ex. N.


Declaration, Inter-Pacific’s footwear infkinges claims 1 and 2 of the ‘858 Patent, the ‘789


XII. RESPONDENT PAL1 HAWAII

55. On information and belief, respondent Pali is a corporation, with its principal

place of business at 501 S m e r Street, Suite 613, Honolulu, Hawaii 96817.

56. On information and belief, Pali imports, exports and distributes footwear,

including the Pali Clog, throughout the United States. See Complaint Ex. 23

4 57. On information and belief, Pali Clog are manufactured in Taiwan and imported

for sale in the U.S. See Wierema Ex. Q.


Declaration, Pali Clog infringe claims 1 and 2 of the ‘858 Patent, the ‘789 Patent and the

Crocs Trade Dress.

XIII. RESPONDENT SHAKA SHOES

59. On information and belief, respondent Shaka is a Hawaii corporation with its

principal place of business at 77-6360 Halawai Place, Kailua-Kona, Hawaii 96740.

60. On information and belief, Shaka manufactures, distributes, markets and sells its

line of Shaka shoes. See Complaint Ex. 24.

61. On information and belief, Shaka shoes are manufactured in China and imported

for sale in the U.S. See Wierema Ex. S. On information and belief, Shaka offers its footwear

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for sale through its website, www.shakashoes.com, where consumers can place an order via e-

mail or phone. See Complaint Ex. 25.

62. As set forth in Paragraphs 95-96,107,111-112,123,139-143 and the C m a c k

Declaration, Shaka Shoes infi-inge claims 1 and 2 of the ‘858 Patent, the ‘789 Patent and the

Crocs Trade Dress.

XIV. UNKNOWN MANUFACTURERS

63. In addition to the respondents named above, Crocs intends to name as

respondents the manufacturers of certain other footwear, which Crocs has purchased in the

United States, when the identity of those manufacturers becomes known.

64. Crocs purchased footwear sold under the name No Boundaries or NoBo (the

‘‘NoBo footwear’? at Wal-Mart in the U.S. See Wierema Ex. T and Carmack Ex. TT.

65. On information and belief, the NoBo footwear is manufactured in China and

imported for sale in the U.S. See Wierema Ex. U.

66. As set forth in Paragraphs 95-96,108,111-112,124,139-143 and the C m a c k

Declaration, the NoBo footwear infiinges claims 1 and 2 of the ‘858 patent, the ‘789 patent and

the Crocs Trade Dress.

67. Crocs purchased footwear sold at Target under no particular name in the U.S.

(the “Target footwear”). See Koon Ex. E.

68. On information and belief, the Target footwear is manufactured in China and

imported for sale in the U.S. See Koon Ex. F.

69. As set forth in Paragraphs 95-96, 109, 11 1-1 12, 125, 139-143 and the Carmack

Declaration, the Target footwear infkinges claims 1 and 2 of the ‘858 patent, the ‘789 patent

and the Crocs Trade Dress.

70. Crocs purchased footwear sold at Sears and Famous Footwear under the name

Bare Traps in the U.S. See Wierema Ex. V.

71. On information and belief, the Bare Traps footwear is manufactured in China

and imported for sale in the U.S. See Wierema Ex. W.

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72. As set forth in Paragraphs 95-96,110, 11 1-1 12,126,139-143 and the Carmack

Declaration, the Bare Traps footwear infringes claims 1 and 2 of the ‘858 patent, the ‘789

patent and the Crocs Trade Dress.

73. Crocs purchased footwear sold at Shoe Carnival under the name Aqua Ducks in

the U.S. See Wierema Ex. K.

74. On information and belief, the Aqua Ducks footwear is manufactured in China

and imported for sale in the U.S. See Wierema Ex. Z.

75. As set forth in Paragraphs 11 1-1 12, 127, 139-143 and the Carmack Declaration,

the Aqua Ducks footwear i n h g e s the ‘789 patent and the Crocs Trade Dress.

76.

Wierema Ex. X.

Crocs purchased footwear sold at K-Mart under the name Sohos in the US. See

77. On information and belief, the Soh0 footwear is manufactured in China and

imported for sale in the US. See Wierema Ex. Y.

78. As set forth in Paragraphs 11 1-1 12, 128, 139-143 and the Carmack Declaration,

the Soh0 footwear infringes the ‘789 patent and the Crocs Trade Dress.

W2 THE FOOTWEAR INDUSTRY

79. Crocs competes in the expanding market for casual footwear. In recent years,

footwear manufacturers have increasingly offered more casual shoes in response to growing

consumer demand. The global casual footwear industry is highly competitive. The principal

elements of competition in this industry include brand awareness, product functionality, design,

quality, pricing, marketing and distribution. The footwear industry is a $39 billion market in

the United States alone. Casual footwear represents 45% of the footwear industry or $17.55

billion. See Confidential Complaint Ex. 26.

XVI. THE ‘858 PATENT

80. On February 7,2006, the U.S. Patent and Trademark Office duly, properly and

legally issued U.S. Patent No. 6,993,858 B2, entitled “Breathable Footwear Pieces,” with Crocs

-1 1-

as the assignee. A certified copy and three additional copies of the ‘858 Patent are being

submitted with this Complaint as Exhibit 1.

81. The ‘858 Patent issued from US. Application No. 10/603,126 filed June 23,

2003, which claims priority to provisional US. Applications Nos. 601473,360 and 601473,371,

both filed on May 23,2003. A certified copy of the U.S. Patent and Trademark Office

prosecution history for the ‘858 Patent and three additional copies of that prosecution history

are being submitted with the Complaint, as are four copies of each patent and the applicable

pages of each technical reference mentioned in that prosecution history. The ‘858 Patent is also

related to US. Application No. 10/602,416, dated June 23,2003, which claims priority fkom

the same provisional applications. A certified copy and three additional copies of the U.S.

Patent and Trademark Office prosecution history for U.S. Application Nos. 60/473,360,

60/473,371, and 10/602,416 are also being submitted with the Complaint as Appendices C-E.

82. The ‘858 Patent claims various footwear pieces. The claimed invention consists

of comfortable footwear that is compatible with various work environments, such as a hospital

setting, which may require secure and waterproof footwear. In some cases, the footwear pieces

are molded from a lofted material. In some embodiments, the shoes also include liquid

conductors formed around ventilators or openings that disperse liquids away from the

individual’s feet. The ‘858 discloses several embodiments of the claimed invention, including

models that contain liquid conductors on the upper portion of the base section, and others that

include a solid base section to protect the feet fiom direct contact with spilled liquids, for

example. Other embodiments include models with an adjustable strap andor open-toe.

83. The ‘858 Patent contains two independent claims. Claim 1 recites a footwear

piece comprising a base section that is formed as a single part manufactured fkom a moldable

foam material; a pivoting strap section formed of moldable foam material that is attached to

opposite ends of the upper base section and is held in place by fictional forces at the contact

points; an open rear region; and an upper region that forms a toe region which follows the

contour of a human foot. Claim 2 additionally claims a decorative pattern of bumps in the

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upper opening perimeter; a plurality of ventilators in the substantially vertical and horizontal

portions; and a sole that includes tread patterns and a foot base including a raised pattern.

Scott Seamans, the inventor of the ‘858 Patent, assigned all right, title and 84.

interest in the patent to Crocs. A copy of each assignment document for the ‘858 Patent is

being submitted with this Complaint as Ex. 27.2

85. Crocs has filed foreign applications corresponding or relating to the ‘858 Patent

in Australia, Brazil, Canada, China, Europe, Hong Kong, India, Japan, Israel, Mexico, New

Zealand, Norway, South Africa and South Korea. A list of all foreign applications

corresponding to the ‘858 Patent and their prosecution status is set forth in Confidential

Complaint Ex. 27. There are no other foreign applications that are related to the ‘858 Patent.

86. The ‘858 Patent has not been the subject of any other foreign or domestic, court

or agency litigation to date. However, concurrently with the filing of this Complaint, Crocs is

filing an action for infringement of the ‘858 Patent in the United States District Court for the

District of Colorado.

87. Crocs has not licensed the ‘858 Patent to date.

XVII. THE ‘789 PATENT

88. On March 28,2006, the U.S. Patent and Trademark Office duly, properly and

legally issued U.S. Patent No. D517,789, entitled “Footwear,” with Crocs as the assignee. A

certified copy and three additional copies of the ‘789 Patent are being submitted with this

Complaint as Exhibit 2.

89. The ‘789 Patent issued from U.S. Application No. 29/206,427, which was filed

May 28,2004, which is a continuation-in-part of Application No. 10/803,569, filed March 17,

2004, which is a continuation-in-part of Application No. 10/603,126, filed June 23,2003 and

which claims priority from provisional Application No. 60/473,360, filed May 23,2003 and

Crocs has ordered a certified copy of the assignment document for the ‘858 2

Patent and will submit it in place of Ex. 27 upon receipt.

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provisional Application No. 60/473,371, filed May 23,2003. Application No. 10/803,569 is

also a continuation-in-part of Application No. 10/602,416, filed June 23,2003, which also

claims priority from provisional Application No. 60/473,360, filed May 23,2003 and

provisional Application No. 60/473,371, filed May 23,2003. Copies of the U.S. Patent and

Trademark Office prosecution history for the ‘789 Patent are being submitted with the

Complaint, as are four copies of each patent and the applicable pages of each technical

reference mentioned in that prosecution history. A certified copy and three additional copies of

the U.S. Patent and Trademark Office prosecution history for U.S. Application Nos.

60/473,360,60/473,371, 10/602,416, and 10/803,569 are also being submitted with the

Complaint as Appendices C-F.3

90. The ‘789 Patent claims an ornamental design for footwear as shown and

described in the following figures:

FIG.4 FIG.5

FIG. 3 FIG.7

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91. Scott Seamans, the inventor of the ‘789 Patent, assigned all right, title and

interest in the patent to Crocs. A copy of each assignment document for the ‘789 Patent is

being submitted with this Confidential Complaint Ex. 28.4

92. Crocs has filed foreign applications corresponding or relating to the ‘789 Patent

in Brazil, China, Europe, India and South Korea. A list of all foreign applications

corresponding to the ‘789 Patent and their prosecution status is set forth in Confidential

Complaint Ex. 28. There are no other foreign applications that are related to the ‘789 Patent.

93. The ‘789 Patent has not been the subject of any other foreign or domestic, court

or agency litigation to date. However, concurrently with the filing of this Complaint, Crocs is

filing an action for infringement of the ‘789 Patent in the United States District Court for the

District of Colorado.

94. Crocs has not licensed the ‘789 Patent to date.

XVIII. INFRINGEMENT OF THE ‘858 PATENT

95. Respondents infiinge claims 1 and 2 of the ‘858 Patent with certain products

mapufactured, imported, sold for importation and/or sold after importation, including but not

limited to: Australia Unlimited’s N O M ; Cheng’s Easy USA Eva Clogs; Collective

Licensing’s Ainvalk shoes; D. Myers & Sons’s Gators; DDD’s Dawgs Clogs; Effervescent’s

Waldies; Gen-X Sports’s Komodos; Holey Soles’s Explorer; Inter-Pacific’s S u n s d d ; Pali’s

Clogz; and Shaka Shoes. In addition, the NoBo, Bare Traps and Target footwear also infiinge

claims 1 and 2 of the ‘858 patent.

96. Crocs has also procured in the United States samples of each of Respondents’

infhging footwear, as well as footwear fiom Unknown Manufacturers. Photographs of the

Crocs has ordered a certified copy of the assignment document for the ‘789 4

Patent and will submit it in place of Ex. 28 upon receipt.

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accused products and products fi-om Unknown Manufacturers are attached to the Carmack

Declaration at Exhibits A-N.

97. A review of Respondent Australia Unlimited’s N O W footwear demonstrates

that the footwear literally infiinge claims 1 and 2 of the ‘858 Patent. A chart applying claims 1

and 2 of the ‘858 Patent to the Nothid is attached as Carmack Ex. A.

98. A review of Respondent Cheng’s Easy USA Eva Clogs demonstrates that the

footwear literally infringe claims 1 and 2 of the ‘858 Patent. A chart applying claims 1 and 2 of

the ‘858 Patent to the Eva Clogs is attached as Carmack Ex. B.

99. A review of Respondent Collective Licensing’s Airwalk footwear demonstrates

that the footwear literally infiringe claims 1 and 2 of the ‘858 Patent. A chart applying claims 1

and 2 of the ‘858 Patent to the Airwalks is attached as Carmack Ex. C.

100. A review of Respondent D. Myers & Sons’s Gators footwear demonstrates that

the footwear literally infringe claims 1 and 2 of the ‘858 Patent. A chart applying claims 1 and

2 of the ‘858 Patent to the Gators is attached as Carmack Ex. D.

101. A review of Respondent DDD Dawgs Clogs footwear demonstrates that the

foqtwear literally infiinge claims 1 and 2 of the ‘858 Patent. A chart applying claims 1 and 2 of

the ‘858 Patent to the Dawgs Clogs is attached as Carmack Ex. E.

102. A review of Respondent Effervescent’s Waldies footwear demonstrates that the

footwear literally infiinge claims 1 and 2 of the ‘858 Patent. A chart applying claims 1 and 2 of

the ‘858 Patent to the Waldies is attached as Carmack Ex. F.

103. A review of Respondent Gen-X Sports’s Komodo footwear demonstrates that

the footwear literally infringe claims 1 and 2 of the ‘858 Patent. A chart applying claims 1 and

2 of the ‘858 Patent to the Komodos is attached as Carmack Ex. G.

104. A review of Respondent Holey Soles’s Explorer footwear demonstrates that the

footwear literally infiinge claims 1 and 2 of the ‘858 Patent. A chart applying claims 1 and 2 of

the ‘858 Patent to the Explorers is attached as Carmack Ex. H.

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105. A review of Respondent Inter-Pacific’s Sunsurfer0 footwear demonstrates that

the footwear literally inffinge claims 1 and 2 of the ‘858 Patent. A chart applying claims 1 and

2 of the ‘858 Patent to the Sunsurfers is attached as Carmack Ex. I.

106. A review of Respondent Pali’s Clog demonstrates that the footwear literally

infiinge claims 1 and 2 of the ‘858 Patent. A chart applying claims 1 and 2 of the ‘858 Patent

to the Pali’ Clog is attached as Carmack Ex. J.

107. A review of Respondent Shaka Shoes footwear demonstrates that the footwear

literally infringe claims 1 and 2 of the ‘858 Patent. A chart applying claims 1 and 2 of the ‘858

Patent to the Shaka Shoes is attached as Carmack Ex. K.

108. A review of the NoBo footwear demonstrates that the footwear literally infiinge

claims 1 and 2 of the ‘858 Patent. A chart applying claims 1 and 2 of the ‘858 Patent to the

NoBo footwear is attached as Carmack Ex. L.

109. A review the Bare Traps footwear demonstrates that the footwear literally

infringe claims 1 and 2 of the ‘858 Patent. A chart applying claims 1 and 2 of the ‘858 Patent

to the Bare Traps footwear and is attached as Carmack Ex. N.

1 10. A review of the Target footwear demonstrates that the footwear literally infringe

claims 1 and 2 of the ‘858 Patent. A chart applying claims 1 and 2 of the ‘858 Patent to the

Target footwear is attached as Carmack Ex. M.

XIX. INFRINGEMENT OF THE ‘789 PATENT

1 1 1. Respondents infringe the ‘789 Patent with certain products manufactured,

imported, sold for importation andor sold after importation, including but not limited to:

Australia Unlimited’s NothinZ, Cheng’s Eva Clogs; Collective Licensing’s Airwalk shoes; D.

Myers & Sons’s Gators; DDD’s Dawgs Clogs; Effervescent’s Waldies; Gen-X Sports’s

Komodos; Holey Soles’s Explorer; Inter-Pacific’s Sunsurfd; Pali’s Clogz; and Shaka Shoes.

In addition, the NoBo, Bare Traps, Target, Aqua Duck and Soh0 footwear also inffinge the

‘789 patent.

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112. Crocs has also procured in the United States samples of each of Respondents’

infiinging footwear. Photographs of the accused products are attached to as Carmack Exs. 0-

DD.

113. A review of Respondent Australia Unlimited’s NothinZ footwear demonstrates

that the footwear literally infringe the ‘789 Patent. A chart applying the ‘789 Patent to the

NothinZ is attached as Carmack Ex. 0.

1 14. A review of Respondent Cheng’s Eva Clogs footwear demonstrates that the

footwear literally infringe the ‘789 Patent. A chart applying the ‘789 Patent to the Eva Clogs is

attached as Carmack Ex. P.

1 15. A review of Respondent Collective Licensing’s Airwalk footwear demonstrates

that the footwear literally f i n g e the ‘789 Patent. A chart applying the ‘789 Patent to the

Airwalks is attached as Carmack Ex. Q.

116. A review of Respondent D. Myers & Sons’s Gators footwear demonstrates that

the footwear literally infhge the ‘789 Patent. A chart applying the ‘789 Patent to the Gators

and is attached as Carmack Ex. R.

117. A review of Respondent DDD Dawgs Clogs footwear demonstrates that the

footwear literally infringe the ‘789 Patent. A chart applying the ‘789 Patent to the Dawgs

Clogs is attached as Carmack Ex. S.

118. A review of Respondent Effervescent’s Waldies footwear demonstrates that the

footwear literally infiinge the ‘789 Patent. A chart applying the ‘789 Patent to the Waldies is

attached as Carmack Ex. T.

1 19. A review of Respondent Gen-X Sports’s Komodo footwear demonstrates that

the footwear literally infiinge the ‘789 Patent. A chart applying the ‘789 Patent to the

Komodos is attached as Carmack Ex. U.

120. A review of Respondent Holey Soles’s Explorer footwear demonstrates that the

footwear literally infiinge the ‘789 Patent. A chart applying the ‘789 Patent to the Explorer is

attached as Carmack Ex. V.

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121. A review of Respondent Inter-Pacific’s Sunsurf@ footwear demonstrates that

the footwear literally infiinge the ‘789 Patent. A chart applying the ‘789 Patent to the

Sunsurfers is attached as Carmack Ex. W.

122. A review of Respondent Pali’s Clog demonstrates that the footwear literally

infiinge the ‘789 Patent. A chart applying the ‘789 Patent to the Pali’s C log is attached as

Carmack Ex. X.

123. A review of Respondent Shaka Shoes footwear demonstrates that the footwear

literally infiinge the ‘789 Patent. A chart applying the ‘789 Patent to the Shaka Shoes is

attached as Carmack Ex. Y.

124. A review of the NoBo footwear demonstrates that the footwear literally infiinge

the ‘789 Patent. A chart applying the ‘789 Patent to the NoBo footwear is attached as Carmack

Ex. Z.

125. A review the Bare Traps footwear demonstrates that the footwear literally

infi-inge the ‘789 Patent. A chart applying the ‘789 Patent to the Bare Traps footwear is

attached as Carmack Ex. AA.

126. A review of the Target footwear demonstrates that the footwear literally infringe

the ‘789 Patent. A chart applying the ‘789 Patent to the Target footwear is attached as

Carmack Ex. BB.

127. A review of the Aqua Ducks footwear demonstrates that the footwear literally

infringe the ‘789 Patent. A chart applying the ‘789 Patent to the Aqua Duck footwear is

attached as Carmack Ex. CC.

128. A review of the Soh0 footwear demonstrates that the footwear literally infkinge

the ‘789 Patent. A chart applying the ‘789 Patent to the Soh0 footwear is attached as Carmack

Ex. DD.

XX. CROCS’S TRADE DRESS

129. Crocs footwear, accessories, displays and associated marketing and sales

materials share an overall unique look and feel that serves to identify Crocs, Inc. as their point

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of origin. The “Crocs Trade Dress” consists of the image and overall appearance of Crocs

footwear. In particular, Crocs shoes are typically characterized as colorful foam clogs with a

sporty European design. They have a distinctively quirky clog-like appearance, which could

also be characterized as friendly, vibrant, fim and bubbly. The distinctively gentle slope of the

upper gives the shoe a unique, recognizable outline. Complaint Ex. 4 contains copies of color

photographs of Crocs footwear and marketing materials, which reflect its distinctive trade

dress. Crocs will additionally submit samples of its footwear.

130. In addition to its overall look and feel, the Crocs Trade Dress also includes one

or more of the following specific elements:

(a) A decorative strip or band along the upper opening perimeter, which may

include a scallop pattern andor raised bumps;

(b) A strip along the vertical portion of the upper running between the points

of attachment of the strap, the strip running along the forefoot and toe regions;

(c) A lower strip paralleling the upper strip and separated from it by a line,

the lower strip circumnavigating the entire shoe and gently rising toward the heel;

II (d) A distinctive tread pattern;

(e) A distinctive pattern of holes in the horizontal andor vertical portion of

the upper;

(f)

(g)

(h) A distinctive one-color design.

A pattern of raised nubs in the footbed;

Characteristic black or black and white strap connectors; and

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13 1. The Crocs Trade Dress is non-functional and serves to distinguish Crocs

footwear from competitive products. The Crocs Trade Dress is ornamental and has no

utilitarian advantage. Furthermore, the virtually infinite number of different footwear styles in

existence today, and throughout the past, evidence the unique nature of the Crocs Trade Dress

and demonstrate that other styles are available to competing footwear manufacturers. Crocs

has not registered its trade dress.

132. Crocs intentionally created its trade dress to distinguish its footwear from any

other footwear and to indicate Crocs, Inc. as its sole point of origin. In fact, the Crocs Trade

Dress plays a central role in Crocs’s business strategy: “We seek to differentiate the crocs

brand and our product offerings by focusing on several core strategies. Our principal strategies

are to: [ 11 Continue to highlight the unique characteristics of crocs footwear. . . . [W]e believe

our fun styles are an important element of our products and our brand image.” See Complaint

Ex. 3 at “Business Strategy” (emphasis in original). On information and belief, no other

manufacturer had used the Crocs Trade Dress prior to its introduction into and success in the

market by Crocs.

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133. As mentioned above, Crocs sells its footwear through a wide range of

distribution channels, including specialty stores such as Barnes & Noble, sporting good and

outdoor retailers such as REI, department stores such as Dillard’s, Nordstrom and e-tail or

catalog sources such as Bloomingdale’s. Crocs are also sold through a variety of specialty

channels, including gift shops, uniform suppliers, independent bicycle dealers, specialty food

retailers, and health and beauty stores. Crocs distributes its products through over 6,500 store

locations domestically, and in over 40 countries worldwide. In addition, Crocs sells its

footwear through its website, www.crocs.com, and in kiosks in shopping malls throughout the

United States. Crocs’s sales and marketing efforts center around the presentation of its

footwear products whose unique appearance showcases the Crocs brand. See e.g., Confidential

Complaint Ex. 26, pp. 18 and 24.

134. Last year alone, Crocs sold over six million pairs of footwear amounting to $108

million in sales worldwide. Crocs also spent nearly a substantial amount directly on promotion

of the Crocs Trade Dress and on total marketing. See Confidential Hanson Decl. (Ex. 6), fi 7.

The dramatic increase of Crocs’s expenditures over previous years evidences the popularity and

appeal enjoyed by Crocs’s footwear.

135. Crocs was recently recognized as “Brand of the Year” by Footwear News, a

leading industry publication. Crocs was also awarded the 2005 “Item of the Year” by

Footwear Plus magazine, which called Crocs the “‘It’ item of 2005.” Also in 2005, Crocs won

the “IQ Award” fkom the Boulder County Business Report, which seeks truly innovative

products. See Complaint Ex. 7 .

136. Due to the inherent distinctiveness of the Crocs Trade Dress, as well as the

extensive sales, advertising and promotion making use of it, Crocs footwear has become well

known throughout the United States as originating from Crocs, Inc.

137. The widespread and unauthorized hitation of the Crocs Trade Dress by the

proposed respondents in order to trade on Crocs’s goodwill and success, as well as the resulting

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high volume of infiinging sales, are also strong evidence that the Crocs Trade Dress has

acquired secondary meaning.

138. Accordingly, Crocs is the owner of a trade dress for its footwear which is the

subject of protection under section 43(a) of the Lanham Act. 15 U.S.C 0 1125(a).

XXI. INFRINGEMENT OF THE CROCS TRADE DRESS

139. Respondents market, import and/or sell footwear that infringes the Crocs Trade

Dress in violation of Section 337(a)(l)(A) under the names: N O W footwear by Australia

Unlimited; Easy USA’s Eva Clogs by Cheng’s; Airwalk footwear by Collective Licensing;

Gators footwear by D. Myers; Dawgs Clogs by DDD; Waldies by Effervescent; Komodo

footwear by Gen-X, Explorer footwear by Holey Soles; Sunsurfer footwear by Inter-Pacific;

Clog by Pali; and Shaka Shoes by Shaka. Additionally, the NoBo, Bare Traps, Aqua Duck,

Target and Soh0 footwear also infringe the Crocs Trade Dress. Examples of Respondents’ and

the other infringing footwear are shown in Carmack Decl. (Ex. 11) Exhibits A-DD and Physical

Exhibits A-R. In addition, with respect to Unknown Manufacturers’ NoBo, Soho, Target and

Bare Traps footwear, their intentional copying is further evidenced by weak and insufficient

efforts to design around Crocs’s patents by implementing superficial and crude post-design

modifications.

140. As shown in Carmack Exhibits A-DD, Respondents’ and the other infiinging

footwear infringe the Crocs Trade Dress, as described above, because they are confusingly

similar to Crocs footwear. On information and belief, this striking similarity has caused actual

confusion and/or is likely to cause confusion, mistake and deception among the relevant

consumers in violation of section 43(a) of the Lanham Act. 15 U.S.C. 6 1125(a).

141. On information and belief, Respondents and Unknown Manufacturers copied the

Crocs Trade Dress with the intent to trade on the goodwill developed by Crocs in establishing

the Crocs Trade Dress. Respondents’ and Unknown Manufacturers’ intentional copying is

further evidenced by the degree of similarity between the products. Furthermore, with respect

to respondents D. Meyers and Gen-X, their intentional copying is further evidenced by their use

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of confusingly similar designations (e.g., Gators and Komodos). Intentional copying by Shaka

Shoes is also evidenced by attempts to pass off their products as Crocs through the use of the

Crocs name on their website. See Complaint Exs. 25 and 30.

142. Crocs has not authorized, licensed or otherwise permitted Respondents or

Unknown Manufacturers to use the Crocs Trade Dress. Therefore, Respondents’ and Unknown

Manufactures’ unfair acts were committed in violation section 43(a) of the Lanham Act. 15

U.S.C. 1125.

143. Because the Respondents and Unknown Manufacturers’ imitation footwear is

confusingly similar to the Crocs Trade Dress, it is likely to cause consumer confusion. Such

consumer confusion has threatened and caused, and will continue to threaten and cause,

substantial injury to Crocs’s domestic industry.

XXII. IMPORTATION BY RESPONDENTS

144. On information and belief, Respondents and Unknown Manufacturers are and

will continue importing, selling for importation, and selling within the United States after

importation foam footwear that infi.inge the ‘858 Patent, the ‘789 Patent andor the Crocs Trade

Dress, in violation of, inter alia, 19 U.S.C. $6 1337(a)(l)(B)(i) and (a)(l)(A)(i).

145. Crocs has obtained in the United States representative samples of each of the

Respondents’ imported footwear. Specifically, as set forth in detail below, Crocs has obtained

in the United States: Australia Unlimited’s Nothid; Cheng’s Eva Clogs; Collective

Licensing’s Airwalks; D. Myers & Sons’s Gators; DDD’s Dawgs Clogs; Effervescent’s

Waldies; Gen-X Sports’s Komodos; Holey Soles’s Explorer; Inter-Pacific’s Sunsurfd; Pali’s

Clog; and Shaka Shoes. Additionally Crocs obtained samples of NoBo, Bare Traps, Aqua

Ducks, Soh0 and Target footwear in the United States. Photographs of these samples are

submitted with this Complaint as Carmack Exhibits A-DD. A detailed description of the steps

that Crocs took in procuring these shoes is set forth in M[ 2,4, and 6 of the Koon Decl. (Ex. 13)

(and exhibits); 77 2,4,6,8, 11’13, 15, 14,20,23,25,27 and 29 of the Wierema Decl. (Ex. 9)

(and exhibits); and v49-50 of the Carmack Decl. (Ex. 11) and (exhibits). Crocs is informed

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and believes that Respondents and Unknown Manufacturers intend to continue to sell for

importation, import andor sell after importation such inflinging products.

146. On information and belief, Australia Unlimited’s Nothinz shoes are

manufztured in China and imported for sale into the United States. Photographs of the

footwear demonstrate that “made in China” is marked on the bottom of the shoe sole. See

Wierema Ex. B.

147. On information and belief, Cheng’s Eva Clogs shoes are manufactured in China

and imported for sale into the United States. Photographs of the footwear demonstrate that the

“made in China” is marked on the tags of the shoes. See Koon Ex B.

148. On information and belief, Collective Licensing’s Airwalk shoes are

manufactured in China and imported for sale into the United States. Photographs of the

footwear demonstrate that the “made in China” is marked on the bottom of the shoe sole. See

Wierema Ex D.

149. On information and belief, D. Myers & Sons’s Gators shoes are manufactured in

China and imported for sale into the United States. Photographs of the footwear demonstrate

that the “made in China” is marked on the bottom of the shoe sole. See Wierema Ex. E.

150. On information and belief, DDD’s Dawgs Clogs shoes are manufactured in


that the “made in China” is marked on the bottom of the shoe sole. See Wierema Ex H.

15 1. On information and belief, Effervescent’s Waldies shoes are manufactured in

South Korea and imported for sale into the United States. Photographs of the footwear

demonstrate that the “made in South Korea” is marked on the tags of the shoes. See Wierema

Ex. J.

152. On information and belief, Gen-X Sports’s Komodo shoes are manufactured in


that the “made in China” is marked on the bottom of the shoe sole. See Wierema Ex. L.

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153. On information and belief, Holey Soles’s Explorer shoes have been

manufactured in China and imported for sale into the United States. According to respondent

Holey Soles’ website, www.holevsoles.com, its shoes are currently manufactured in China. In

addition, the label on the bottom of the shoe sole indicates that the footwear is “made in

China.” See Koon Ex. D.

154. On information and belief, Inter-Pacific’s Sunsurfer shoes are manufactured in


that “made in China” is marked on the bottom of the shoe sole. See Wierema Ex. N.

155. On information and belief, Pali’s Clog are manufactured in Taiwan and

imported for sale into the United States. Photographs of the footwear demonstrate that the

shoes contain a sticker stating, “made in Taiwan” on the bottom of the shoe sole and on the

packaging. See Wierema Ex Q.

156. On information and belief, Shaka Shoes are manufactured in China and

imported for sale into the United States. Photographs of the footwear demonstrate that the

“made in China” is marked on the bottom of the shoe sole. See Wierema Ex S.

157. On information and belief, the NoBo footwear is manufactured in China and

imported for sale into the United States. Photographs of the footwear demonstrate that “made

in China” is marked on the bottom of the shoe sole. See Wierema Ex. U.

158. On information and belief, the Bare Traps footwear is manufactured in China

and imported for sale into the United States. Photographs of the footwear demonstrate that

“made in China” is marked on the bottom of the shoe sole. See Wierema Ex. W . 159. On information and belief, the Target footwear is manufactured in China and

imported for sale into the United States. Photographs of the footwear demonstrate that “made

in China” is marked on the bottom of the shoe sole. See Koon Ex. F.

160. On information and belief, the Aqua Ducks footwear is manufactured in China

and imported for sale into the United States. Photographs of the footwear and packaging

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demonstrate that “made in China” is imprinted on the packing, labels and stickers

accompanying the footwear. See Wierema Ex. Z.

16 1. On information and belief, the Soh0 footwear is manufactured in China and

imported for sale into the United States. Photographs of the footwear and packaging

demonstrate that “made in China” is marked on the bottom of the shoe sole. See Wierema Ex.

Y.

162. On information and belief, all of the accused and other infringing products are

available for sale in the United States. Complaint Exhibit 3 1 lists the item numbers under the

Harmonized Tariff Schedules of the United States for foam footwear, which have been

imported unlawfully into the United States, sold for importation into the United States, andor

sold after importation into the United States in violation of Crocs’s importation rights.

XXIII. DOMESTIC INDUSTRY

163. As defined by Section 337(a)(3), a domestic industry exists in connection with

Crocs footwear that practice the claims of the Asserted Patents. A domestic industry also exists

in connection with the Crocs Trade Dress. Crocs has made significant investments in property

and equipment and employs a significant amount of labor and capital in the United States for

the manufacture, design, research, development, testing, marketing and sales of its footwear. In

particular, Crocs has made substantial investments in the exploitation of the Asserted Patents

by virtue of its research and development within the United States. Crocs also manufactures

some of its footwear in the United States through a third party manufacturer in Florida.

164. The ‘858 Patent plays an important role in Crocs’s market success because the

claimed technology is incorporated in its Beach, Caymans, Kids Caymans, Aspen, Professional,

Relief (Metro), Highland, Chubb and Cloud models. A complete list of Crocs shoes that

incorporate the invention of the ‘858 Patent is attached hereto as Carmack Ex. EE.

165. Submitted with this Complaint as Exhibits FF-NN to the Carmack Declaration

are claim charts that apply the asserted claims of the ‘858 Patent to representative Crocs shoes.

Photographs of representative Crocs shoes are attached hereto as Carmack Exs. FF-NN.

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166. The ‘789 Patent plays an important role in Crocs’s market success because the

claimed technology is incorporated in its Beach, Cayman, Kids Cayman, Chubb and Cloud

models. A complete list of Crocs shoes that incorporate the invention of the ‘789 Patent is

attached hereto as Carmack Ex. EE.

167. Submitted with this Complaint as Carmack Exs. 0 0 - S S are claim charts that

apply the asserted claims of the ‘789 Patent to representative Crocs shoes. Photographs of

representative Crocs shoes are attached hereto as Carmack Exs. 0 0 - S S .

168. The Crocs Trade Dress plays an important role in Crocs’s market success

because it distinguishes Crocs’s footwear from any other footwear and indicates Crocs, Inc. as

its sole point of origin. The inherent distinctiveness of Crocs’s footwear is evidenced in the

footwear itself, and is demonstrated by Crocs’s marketing and promotional materials. See

Complaint Ex. 4.

169. A significant portion of the design, research and development work for Crocs

shoes that incorporate one or more of the Asserted Patents and the Crocs Trade Dress takes

place in the United States. Crocs performs design, research, testing, engineering, and

development activities for its footwear in its Niwot, Colorado facilities. Specifically, Crocs’s

domestic activities include: tooling or making representative molds for its footwear; research

and development of the closed-cell materials that the footwear is made from; various

engineering activities; “machining” or milling footwear components and prototypes; computer-

aided design; various reliability and verification testing; defining product specification,

including lasting and grading; making tools and equipment used for testing; and designing its

footwear. Confidential Exhibit E to the Confidential Hanson Decl. (Ex. 6) demonstrates the

number of domestic employees involved in design, research, development and engineering.

Crocs has made and continues to make substantial ongoing investments in its 170.

footwear that exploits the Asserted Patents. From 2003-2005, Crocs made substantial

investments in research and development. See Confidential Hanson Decl. (Ex. 6), 7 14. Nearly

all of Crocs’s research and development activities and related expenditures takes place in the

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United States. Id. Crocs’s domestic investments toward research and development activities

for 2003-2005 are also set forth in the Confidential Exhibit D to the Confidential Hanson Decl.

(Ex. 6)

17 1. In addition, Crocs manufactures some of its footwear that incorporate one or

more of the Asserted Patents and the Crocs Trade Dress in the United States. Crocs utilizes a

third party manufacturer to produce some of its footwear in Florida. Hundreds of thousands of

Crocs shoes were manufactured domestically fkom 2004-2005, all of which practice the

Asserted Patents and include the Crocs Trade Dress. See confidential Hanson Decl. (Ex. 6), 7 9. Crocs will submit samples of the Crocs footwear that is manufactured in the United States.

172. Crocs has derived substantial revenues from its sales of shoes embodying one or

more of the Asserted Patents and the Crocs Trade Dress. Crocs’s domestic sales of its footwear

have increased dramatically over the last three years. See Confidential Hanson Decl. (Ex. 6), 7 13. The revenues attributable to the Crocs shoes that incorporate the Asserted Patents and the

Crocs Trade Dress are set forth in Confidential Exhibit C to the Confidential Hanson Decl. (Ex.

6)

173. Crocs leases two buildings in Niwot, Colorado that total 49,000 square feet.

Crocs’s headquarters is divided between the two buildings, one of which also serves as its

warehouse. Crocs’s headquarters constitute its principal executive and administrative offices.

All of its domestic activities relating to the design, research, development and engineering (as

described in Paragraph 169, supra) are performed at Crocs’s headquarters. In addition, Crocs

conducts sales and marketing financial activities at its Colorado facilities. In addition to

housing part of its Colorado headquarters, one building also serves as Crocs’s company-

operated warehouse and order processing facility. Accounting, finance and logistics activities

are also performed in this facility. See Confidential Hanson Decl. (Ex. 6), 7 10. Confidential

Exhibit E to the Confidential Hanson Decl. (Ex. 6) demonstrates the number of domestic

employees involved in sales and marketing activities. In addition, the square footage of the

Colorado headquarters, along with the percentage of the facility devoted to activities relating to

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Crocs footwear that incorporate the Asserted Patents and Crocs Trade Dress is set forth in

Confidential Hanson Ex.B.

174. Crocs also leases space in shopping malls throughout the country for its kiosks,

through which Crocs markets and sells its footwear. See Confidential Hanson Decl. (Ex. 6), 7 11.

xxn7.INJuRY

175. Infringement of Crocs’s patents and trade dress by Respondents and Unknown

Manufacturers has impacted, and will continue to impact, Crocs’s domestic sales and pricing.

The similarity of the infiinging products, the large number of infkingers and the wide

distribution channels through which infinging footwear is sold have also damaged, and will

continue to damage, Crocs’s reputation and brand image due to consumer confusion.

176. As shown in Wierema Exhibits A, C, E, G, I, K, M, 0, P, R T, V, and X and

Koon Exhibits A, C, and E, footwear infiinging the Crocs Trade Dress and Asserted Patents

can be purchased in large chain department and super stores, drug stores, specialty stores and

online starting at prices below $10. If permitted to continue, sales of such infi-inging products

will substantially drive down Crocs’s sales and sales revenue and the number of infringers will

multiply. In addition, the imitation of the Crocs Trade Dress adversely impacts consumers’

view of Crocs’s products, and will continue to thwart Crocs’s ability to market its product as

well as Crocs’s stated strategies to “differentiate the crocs brand” and “[c]ontinue to highlight

the unique characteristics of crocs footwear” in order to expand its business. See Complaint

Ex. 3. In sum, the infiingement of the Crocs Trade Dress and Asserted Patents has caused, and

will continue to cause, a substantial and irreparable injury to Crocs’s domestic industry.

XXV. RELIEF

WHEREFORE, by reason of the foregoing, Crocs requests that the United States

International Trade Commission:

a. Institute an investigation, pursuant to Section 337 of the Tariff Act of 1930, as

amended, 19 U.S.C. 6 1337, with respect to violations of that section based upon the unlawful

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importation into the United States, the sale for importation or the sale within the United States

after importation by Respondents of certain foam footwear that infringe claims 1 and 2 of the

valid and enforceable ‘858 Patent andor the ‘789 Patent; and the Crocs Trade Dress;

b. Render a determination that Crocs has established an industry in the United

States relating to articles protected by claims 1 and 2 of the ‘858 Patent, the ‘789 Patent, and

the Crocs Trade Dress;

C. Render a determination that claims 1 and 2 of the ‘858 Patent and the ‘789

Patent are valid and enforceable;

d. Render a determination that Respondents are importing, selling for importation

andor selling after importation into the United States, foam footwear, which infkinge claims 1

and 2 of the ‘858 Patent, the ‘789 Patent, and the Crocs Trade Dress;

e. Render a determination that Respondents’ importation, sale for importation

andor sale after importation of infiinging foam footwear constitute one or more violations of

Section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 6 1337;

f. Issue a permanent exclusion order pursuant to Section 337(d) of the Tariff Act

of 1930, as amended, excluding fiom entry into the United States all foam footwear which are

manufactured, imported or sold for importation by or on behalf of Respondents and which

kdiinge claims 1 and 2 of the ‘858 Patent, the ‘789 Patent, and the Crocs Trade Dress;

g. Issue permanent cease and desist orders pursuant to Section 337(f) of the Tariff

Act of 1930, as amended, prohibiting Respondents fiom importing into the United States,

selling for importation or selling within the United States after importation any foam footwear,

which infiinge claims 1 and 2 of the ‘858 Patent, the ‘789 Patent, and the Crocs Trade Dress;

and

h. Grant such other and further relief as the Commission deems just and proper

under the law, based on the facts determined by the investigation and the authority of the

Commission.

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Dated: March 3 1,2006

omas T. Carmack WILSON SONSINI GOODRICH & ROSATI 650 Page Mill Road Palo Alto, California 94304 Telephone: (650) 493-9300

Michael A. Berta Ariana M. Chung-Han WILSON SONSINI GOODRICH & ROSATI One Market, Spear Street Tower Suite 3300 San Francisco, California 94105 Telephone: (41 5) 947-2000

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VERIFICATION OF COMPLAINT

I, Erik Rebich, am Secretary and General Counsel, for Crocs, Inc. (“Crocs”), and am

duly authorized to execute this complaint on behalf of Crocs. I have read the complaint and am

aware of its contents. To the best of my knowledge, information and belief, formed after an

inquiry that is reasonable under the circumstances, I hereby certify as follows:

1. The Complaint is not being filed for any improper purpose, such as to harass or

cause unnecessary delay or needless increase in the cost of the investigation;

2. The claims and other legal contentions in the complaint are warranted by

existing law or by a nonfrivolous argument for the extension, modification, or reversal of

existing law or the establishment of new law;

3. The allegations and other factual contentions in the complaint have evidentiary

support or, if specifically so identified, are likely to have evidentiary support after a reasonable

opportunity for further investigation or discovery.

I declare under penalty of perjury on this 30th day of March, 2006 that the foregoing is

true and correct.

Erik gebich /

Secretary and General Counsel Crocs, Inc.

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Wilson Sonsini Goodrich & Rosati

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