before, the design of a product is generally registerable as a trademark as long as it is not functional. To determine whether an article is functional, and thus not protectable as a trademark, the USPTO will consider the following factors:
- the existence of a utility patent that discloses the utilitarian advantages of the design sought to be registered;
- advertising by the applicant that touts the utilitarian advantages of the design;
- facts pertaining to the availability of alternative designs; and
- facts pertaining to whether the design results from a comparatively simple or inexpensive method of manufacture.
See TMEP 1202.02(a)(v). Crocs will need to prove to the USPTO that the portions of the shoe design claimed in these trademark applications are not functional aspects of the shoe. Claiming something like a shoe design is not functional is probably more difficult than claiming the highly decorative aspects of a beer tap are not (as with the Shock Top mark). Crocs may be in for a battle with the USPTO.
Although not exactly the same situation, Louboutin was successful in registering and protecting the red sole of its shoes as a trademark.