On October 6, 2025, the U.S. Supreme Court declined to review the Federal Circuit’s decision in Crocs, Inc. v. Double Diamond Distrib., Ltd., et al., leaving a circuit split regarding Lanham Act false advertising claims firmly in place. The Second, Sixth, and Ninth Circuits have held that the Lanham Act’s false advertising cause of action does not extend to statements concerning the intangible features of a product, like whether it is patented or proprietary. But the Fourth and Federal Circuits have held the opposite. Without guidance from the Supreme Court, companies face potential liability for advertising claims that will depend on the forum of the lawsuit.
This issue in Crocs stemmed from a protracted legal battle initiated in 2006 against Double Diamond Distribution, Ltd., U.S.A. Dawgs, Inc., and Mojave Desert Holdings, LLC (collectively, Dawgs). A decade later in 2016, Dawgs alleged that Crocs violated the Lanham Act by falsely claiming that its closed-cell resin “Croslite” was exclusive, proprietary, and patented. Dawgs alleged that the statement was likely to deceive consumers into believing that all other molded footwear is made of inferior material. The U.S. District Court for the District of Colorado found these statements not actionable under the Lanham Act following the precedent set by the Second, Sixth, and Ninth Circuits.
But the Federal Circuit reversed the lower court decision, holding that the prohibition on misrepresentations about...
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