Crocs, Inc. v. International Trade Commission

United States Court of Appeals
for the Federal Circuit
______________________
CROCS, INC.,
Appellant
v.
INTERNATIONAL TRADE COMMISSION,
Appellee
______________________
2024-1300
______________________
Appeal from the United States International Trade
Commission in Investigation No. 337-TA-1270.
______________________
Decided: January 8, 2026
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D AVID A. CAINE, Arnold & Porter Kaye Scholer LLP,
Palo Alto, CA, argued for appellant. Also represented by
MICHAEL BERTA , SEAN MICHAEL CALLAGY , I SAAC RAMSEY ,
San Francisco, CA; MARK SAMARTINO, Chicago, IL;
ANDREW T UTT , Washington, DC.
CARL P AUL BRETSCHER , Office of the General Counsel,
United States International Trade Commission, Washing-
ton, DC, argued for appellee. Also represented by AMANDA
P ITCHER F ISHEROW , H OUDA M ORAD.
______________________
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CROCS, INC. v. ITC 2
Before L OURIE and STOLL , Circuit Judges, and CHUN,
District Judge.1
STOLL , Circuit Judge.
Crocs, Inc. appeals the United States International
Trade Commission’s finding of no violation of Section 337
of the Tariff Act of 1930, as amended, 19 U.S.C. § 1337, by
the respondents who participated in an evidentiary hear-
ing: Orly Shoe Corp.; Hobby Lobby Stores, Inc.; and Quan-
zhou ZhengDe Network Corp., d/b/a Amoji (collectively, the
“Active Respondents”). Because Crocs’s appeal of the Com-
mission’s no violation finding as to the Active Respondents
is untimely, we dismiss in part.
Crocs also appeals the Commission’s entry of a limited
exclusion order against the respondents the Commission
found to be in default: Jinjiang Anao Footwear Co., Ltd.;
Huizhou Xinshunzu Shoes Co., Ltd.; Star Bay Group, Inc.;
and La Modish Boutique (collectively, the “Defaulting Re-
spondents”). Because the Commission did not abuse its
discretion in entering a limited exclusion order under
19 U.S.C. § 1337(g)(1) against the Defaulting Respondents,
we affirm in part.
BACKGROUND
Crocs owns U.S. Trademark Nos. 5,149,328
and 5,273,875 (collectively, the “3D Marks”), which cover
certain features of Crocs’s Classic Clog shoes. In June
2021, Crocs filed a complaint with the Commission, which
it later amended, accusing multiple respondents of violat-
ing Section 337 by importing, selling for importation, or
selling in the United States after importation certain cas-
ual footwear that infringed or diluted Crocs’s 3D Marks.
1 Honorable John H. Chun, District Judge, United
States District Court for the Western District of Washing-
ton, sitting by designation.
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CROCS, INC. v. ITC 3
Crocs’s complaint requested relief in the form of a general
exclusion order (GEO), or in the alterative, a limited exclu-
sion order (LEO). In July 2021, the Commission instituted
an Investigation based on Crocs’s complaint. Prior to the
evidentiary hearing in the Investigation, the Commission
found the four Defaulting Respondents “were in default
and waived their rights to appear, to be served with docu-
ments, and to contest the allegations in this investigation.”
J.A. 14. The three Active Respondents participated in an
evidentiary hearing before an Administrative Law Judge
in September 2022.2
In January 2023, the Administrative Law Judge issued
an Initial Determination finding no violation of Section 337
because, among other reasons, (1) Crocs failed to prove that
any of the respondents infringed the 3D Marks; (2) Crocs
failed to prove that any of the respondents diluted the
3D Marks by blurring or tarnishment; and (3) Crocs
waived its infringement contentions against the Defaulting
Respondents. In April 2023, the Commission determined
to review in part the Initial Determination, including the
Administrative Law Judge’s findings on likelihood of con-
fusion and dilution of the 3D Marks and whether Crocs
waived its infringement contentions against the Defaulting
Respondents.
On September 14, 2023, the Commission issued its No-
tice of Final Determination and corresponding Commission
Opinion finding no violation of Section 337 by the Active
Respondents because Crocs failed to prove likelihood of
confusion, infringement, or dilution of the 3D Marks as to
those respondents. For the Defaulting Respondents, the
Commission “determined to set aside the [Initial Determi-
nation]’s findings with respect to waiver as they do not
2 Throughout the Investigation, more than twenty
other respondents were also terminated based on settle-
ment agreements or consent orders.
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CROCS, INC. v. ITC 4
apply to issuance of an LEO or [cease and desist order
(CDO)] against a party found in default, pursuant to
19 U.S.C. § 1337(g)(1).” J.A. 44. The Commission noted
that “Section 337(g)(1) states that, once a party is found in
default, ‘the Commission shall presume the facts alleged in
the complaint to be true and shall, upon request, issue an
exclusion from entry [i.e., LEO] or a cease and desist order,
or both, limited to that person,’ unless the Commission
finds the public interest factors weigh against exclusion.”
J.A. 45 (alteration in original) (quoting 19 U.S.C.
§ 1337(g)(1)). The Commission reasoned that there was
“thus no need [for Crocs] to present infringement conten-
tions with respect to [the Defaulting R]espondents in
Crocs’s prehearing brief to obtain relief limited to them un-
der [S]ection 337(g)(1).” Id. As the Commission found the
public interest factors did not preclude relief in this case, it
issued an LEO against the Defaulting Respondents.
On December 22, 2023, Crocs filed a notice of appeal.
See ECF No. 1.
D ISCUSSION
On appeal, Crocs challenges (1) the Commission’s no
violation finding as to the Active Respondents, and (2) the
Commission’s decision to only enter an LEO against the
Defaulting Respondents instead of entering a GEO, as
Crocs requested. The Commission responds that
(1) Crocs’s appeal against the Active Respondents is time-
barred by Section 337(c), and (2) the Commission did not
abuse its discretion in issuing only an LEO against the De-
faulting Respondents. We take each issue in turn.
I
According to Crocs, its appeal is timely because the
“Commission issued its one and only final determination in
the Investigation below on September 14, 2023,” which
“triggered a 60-day Presidential review period, rendering
the determination non-final . . . until November 14, 2023.”
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CROCS, INC. v. ITC 5
Appellant’s Br. 83. Thus, Crocs argues, the 60-day appeal
window set in Section 337(c) did not start to run until No-
vember 14, 2023, rendering its December 22, 2023 notice of
appeal timely as to the Active Respondents. We disagree.
The language of Section 337 and our case law support
dismissing Crocs’s appeal as to the Active Respondents.
Our jurisdiction to hear appeals from the Commission is
governed by 28 U.S.C. § 1295(a)(6): “The United States
Court of Appeals for the Federal Circuit shall have exclu-
sive jurisdiction . . . to review the final determinations of
the United States International Trade Commission relat-
ing to unfair practices in import trade[] made under [S]ec-
tion 337.” Section 337(c) states in part that:
Any person adversely affected by a final determina-
tion of the Commission under subsection (d), (e), (f),
or (g) may appeal such determination, within
60 days after the determination becomes final, to
the United States Court of Appeals for the Federal
Circuit for review in accordance with chapter 7 of
title 5. Notwithstanding the foregoing provisions of
this subsection, Commission determinations under
subsections (d), (e), (f), and (g) with respect to its
findings on the public health and welfare, competi-
tive conditions in the United States economy, the
production of like or directly competitive articles in
the United States, and United States consumers,
the amount and nature of bond, or the appropriate
remedy shall be reviewable in accordance with sec-
tion 706 of title 5. Determinations by the Commis-
sion under subsections (e), (f), and (j) with respect
to forfeiture of bonds and under subsection (h) with
respect to the imposition of sanctions for abuse of
discovery or abuse of process shall also be reviewa-
ble in accordance with section 706 of title 5.
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CROCS, INC. v. ITC 6
19 U.S.C. § 1337(c) (emphasis added). Prior to a Commis-
sion finding of a violation becoming final, however, there is
a 60-day presidential review period:
(1) If the Commission determines that there is a vi-
olation of this section, . . . it shall—
. . .
(B) transmit to the President a copy of such
determination and the action taken under
subsection (d), (e), (f), (g), or (i), with respect
thereto, together with the record upon which
such determination is based.
. . .
(4) If the President does not disapprove such deter-
mination within such 60-day period, or if he noti-
fies the Commission before the close of such period
that he approves such determination, then, for pur-
poses of paragraph (3) and subsection (c) such de-
termination shall become final on the day after the
close of such period or the day on which the Presi-
dent notifies the Commission of his approval, as
the case may be.
19 U.S.C. § 1337(j) (emphasis added).
In Allied Corp. v. United States International Trade
Commission, 782 F.2d 982 (Fed. Cir. 1986), two orders is-
sued from the Commission: (1) a July 6, 1984 order adopt-
ing an Administrative Law Judge’s determination that two
of Allied’s patents were invalid, which was not subject to a
presidential review period, and (2) an October 15, 1984 or-
der excluding articles that infringed Allied’s valid patent,
which was subject to a 60-day presidential review period.
See 782 F.2d at 983. Allied filed its notice of appeal on Feb-
ruary 13, 1985, which was within the 60-day appeal win-
dow that started after the presidential review period for
the second order was complete. However, our court
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CROCS, INC. v. ITC 7
dismissed Allied’s appeal as untimely. Because “Allied pre-
vailed in respect [to the valid] patent and the exclusion or-
der, it could not appeal from that order.” Id. This left only
the July 6, 1984 order invalidating two of Allied’s patents,
which “was final as of July 6, 1984, there being no provision
for Presidential review, or for other administrative pro-
ceedings” relevant to that order. Id. at 984. But Allied’s
notice of appeal was filed more than 60 days after July 6,
1984. Allied tried to argue “that a § 337(c) proceeding is a
single entity and [thus] it was waiting for expiration of the
Presidential review period” on the entire investigation to
end before it appealed. Id. We held that this argument
was “without merit.” Id.
In Broadcom Corp. v. International Trade Commission,
542 F.3d 894 (Fed. Cir. 2008), the Commission found no vi-
olation on two patents, after which Broadcom filed the
named appeal; however, the Commission had also issued
an exclusion order barring the importation of Qualcomm’s
accused products based on infringement of a different pa-
tent, which Qualcomm appealed as part of a different case
before our court after the presidential review period for the
exclusion order was complete. See 542 F.3d at 896. Qual-
comm then tried to have Broadcom’s appeal dismissed as
premature because, “[i]n Qualcomm’s view, the Commis-
sion’s order did not become final and appealable until after
the President declined review of the Commission’s exclu-
sion order based on the [infringed] patent.” Id. We relied
on Allied to hold that “once the Commission adopted the
administrative law judge’s noninfringement determina-
tion, there was no further opportunity for review of that
decision other than by way of review in this court. Broad-
com therefore did not prematurely file its petition for re-
view once the Commission issued its order.” Id. at 896–97.
Thus, our case law instructs that in investigations that
have a mixed result of a violation finding (subject to a pres-
idential review period prior to the 60-day appeal window
starting) and a no-violation finding (not subject to a
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CROCS, INC. v. ITC 8
presidential review period and so final for the purposes of
starting the 60-day appeal window at the time it issues),
the notices of appeal for the different findings have distinct
appeal windows. Here, as to the Active Respondents, when
the Commission’s determination of no violation was en-
tered there was no presidential review period and no other
administrative proceedings for that finding (unlike for the
entry of an exclusion order against the Defaulting Re-
spondents). Thus, the no violation finding was a final de-
cision of the Commission on the day it issued and the 60-
day period in Section 337(c) to file a notice of appeal began
to run. That 60-day period ended on November 13, 2023,
but Crocs did not file its notice of appeal until December 22,
2023.
Crocs argues that, because the Commission chose to is-
sue both its decision of no violation against the Active Re-
spondents and its decision to issue an exclusion order
against the Defaulting Respondents in the same writing—
i.e., the Commission issued only one Notice of Final Deter-
mination and Commission Opinion—then we must treat it
as a single final determination that cannot be parsed for
the purposes of presidential review, and thus also cannot
be parsed for the appeal window. But Crocs does not point
to any case law from this court that supports this argu-
ment. While Crocs seeks to analogize this case to Young
Engineers, Inc. v. United States International Trade Com-
mission, 721 F.2d 1305 (Fed. Cir. 1983), Young Engineers
does not stand for a different proposition from what we de-
scribe above for investigations with mixed violation re-
sults. Indeed, Young Engineers has no bearing on these
types of investigations, as it did not include a no violation
finding. Instead, Young Engineers dealt with finality is-
sues arising from when the President, during the presiden-
tial review period, disapproved in part of the relief the
Commission granted and remanded the entire remedy back
to the Commission to modify the exclusion orders entered
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CROCS, INC. v. ITC 9
against respondents. See Young Engineers, 721 F.2d
at 1308–09.
Moreover, even Crocs seems to concede that if the Com-
mission had issued two different writings—even if those or-
ders came out on the same day—then under our court’s
precedent the time period to file a notice of appeal would
be different for the two sets of respondents. See Appellant’s
Reply Br. 36 (“In future investigations, the Commission
can ensure that affected parties are able to appeal adverse
decisions quickly by issuing two final determinations, one
containing the adverse findings and conclusions and the
other containing the favorable findings and conclusions as
well as the remedies.”). But this merely elevates form over
substance.
Crocs also summarily argues without explication that
Harrow v. Department of Defense, 601 U.S. 480 (2024), ap-
plies to Section 337(c) and, thus, the deadlines in 19 U.S.C.
§ 1337(c) are not jurisdictional. See Appellant’s Br. 82. We
need not decide this issue or whether equitable tolling
could apply to this case because, even assuming that the
60-day period in Section 337(c) is not jurisdictional and one
could equitably toll this statute, Crocs forfeited its right to
argue it was entitled to such equitable tolling here. Despite
citing Harrow to argue that the statute was not jurisdic-
tional, Crocs failed to include any argument or evidence on
tolling in its opening brief. See Appellant’s Br. 82–83; see
also SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d
1312, 1319 (Fed. Cir. 2006) (“Our law is well established
that arguments not raised in the opening brief are
waived.”).
* * *
We thus hold that Allied and Broadcom are controlling
where the Commission issues one writing that contains
both a no violation finding against one set of respondents
and enters an exclusion order against another set of re-
spondents. Accordingly, there will be different deadlines
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CROCS, INC. v. ITC 10
to file an appeal for such decisions. Here, the no violation
finding against the Active Respondents was final as of the
day it issued because it was not subject to presidential re-
view or any other administrative proceedings, and so the
60-day period to file a notice of appeal began to run on Sep-
tember 14, 2023. Thus, the notice of appeal for the Com-
mission’s final decision of no violation by the Active
Respondents was due by November 13, 2023, but Crocs did
not file its notice of appeal until December 22, 2023.
Crocs’s appeal of the no violation finding is thus dismissed
as untimely.
II
Turning to Crocs’s request for a GEO instead of an LEO
based on the Commission’s entry of a violation against the
Defaulting Respondents,3 Crocs argues that the Commis-
sion offered “no explanation for its finding and provided no
reasoning to justify its conclusion” that Crocs was not enti-
tled to a GEO. Appellant’s Br. 23. We disagree.
“[T]he Commission has broad discretion in selecting
the form, scope and extent of the remedy, and judicial re-
view of its choice of remedy necessarily is limited.” Visco-
fan, S.A. v. U.S. Int’l Trade Comm’n, 787 F.2d 544, 548
(Fed. Cir. 1986). “Stated another way, because the Com-
mission is ‘the expert body to determine what remedy is
necessary,’ it has ‘wide latitude for judgment and the
courts will not interfere except where the remedy selected
3 “A limited exclusion order is ‘limited’ in that it only
applies to the specific parties before the Commission in the
investigation. In contrast, a general exclusion order bars
the importation of infringing products by everyone, regard-
less of whether they were respondents in the Commission’s
investigation.” Yingbin-Nature (Guangdong) Wood Indus.
Co. v. Int’l Trade Comm’n, 535 F.3d 1322, 1330 (Fed. Cir.
2008) (citation omitted).
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CROCS, INC. v. ITC 11
has no reasonable relation to the unlawful practices found
to exist.’” Philip Morris Prods. S.A. v. Int’l Trade Comm’n,
63 F.4th 1328, 1339–40 (Fed. Cir. 2023) (quoting Viscofan,
787 F.2d at 548). “This court therefore must affirm the
Commission’s choice of remedy unless the action is ‘arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with law.’” Id. at 1340 (quoting Spansion,
Inc. v. Int’l Trade Comm’n, 629 F.3d 1331, 1358 (Fed. Cir.
2010)).
In setting aside the Administrative Law Judge’s no vi-
olation finding for the Defaulting Respondents based on
waiver, the Commission explained that such waiver would
“not apply to issuance of an LEO or CDO against a party
found in default, pursuant to 19 U.S.C. § 1337(g)(1).”
J.A. 44. Instead, under Section 337(g)(1), the Commission
clarified that it was to assume the facts alleged in Crocs’s
complaint against the Defaulting Respondents were true
and it “shall . . . issue an exclusion from entry.” J.A. 45.
Thus, the Commission described that it was only issuing
an exclusion order against the Defaulting Respondents
based on Section 337(g)(1). Section 337(g)(1) states:
(1) If—
(A) a complaint is filed against a person under this
section;
(B) the complaint and a notice of investigation are
served on the person;
(C) the person fails to respond to the complaint and
notice or otherwise fails to appear to answer the
complaint and notice;
(D) the person fails to show good cause why the per-
son should not be found in default; and
(E) the complainant seeks relief limited solely to
that person;
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CROCS, INC. v. ITC 12
the Commission shall presume the facts alleged in
the complaint to be true and shall, upon request,
issue an exclusion from entry or a cease and desist
order, or both, limited to that person unless, after
considering the effect of such exclusion or order
upon the public health and welfare, competitive
conditions in the United States economy, the pro-
duction of like or directly competitive articles in the
United States, and United States consumers, the
Commission finds that such exclusion or order
should not be issued.
19 U.S.C. § 1337(g)(1) (emphases added). Accordingly,
pursuant to the language of the statute, after finding that
any waiver by Crocs of its infringement contentions against
the Defaulting Respondents was irrelevant because the
Commission had to accept the complaint allegations as true
and enter an exclusion order under Section 337(g)(1), the
Commission could only issue an exclusion order “limited”
to those respondents it had found in default—i.e., an LEO.4
Thus, we hold that the Commission provided a sufficient
basis for its issuance of an LEO, and its actions were not
arbitrary, capricious, an abuse of its discretion, or other-
wise not in accordance with law.
4 Crocs does not argue it could avail itself of
19 U.S.C. § 1337(g)(2), which allows for the entry of a GEO
in an investigation involving default only if all respondents
to the investigation do not appear. 19 U.S.C. § 1337(g)(2)
(explaining that a GEO “may be issued if—(A) no person
appears to contest an investigation concerning a violation
of the provisions of this section, (B) such a violation is es-
tablished by substantial, reliable, and probative evidence,
and (C) the requirements of subsection (d)(2) are met.”).
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CROCS, INC. v. ITC 13
CONCLUSION
We have considered Crocs’s remaining arguments and
find them unpersuasive. For the foregoing reasons, we dis-
miss Crocs’s appeal as to the Commission’s finding of no
violation by the Active Respondents and affirm the Com-
mission’s decision entering an LEO against the Defaulting
Respondents.
DISMISSED-IN-PART AND AFFIRMED-IN-PART
COSTS
Costs to Appellee.
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