January 23, 2026

The Federal Circuit in Crocs, Inc. v. Int’l Trade Comm’n, No. 24-1300, ---F.4th---, 2026 WL 59878 (Fed. Cir. Jan. 8, 2026), addressed, among other issues, whether Crocs timely appealed the Commission’s final determination of no violation of Section 337 as to certain respondents.  Crocs alleged in its complaint that respondents violated Section 337 by importing, selling for importation, or selling in the United States after importation casual footwear that infringed or diluted certain trademarks. 2026 WL 59878 at *1.  Some respondents defaulted after the investigation was instituted and are referred to as “Defaulting Respondents,” while non-defaulting respondents are “Active Respondents.” Id.  The Commission’s final determination was mixed. Id.  It first found that the Active Respondents did not violate Section 337 because Crocs failed to prove likelihood of confusion, infringement, or dilution of the asserted marks. Id.  It next set aside the Initial Determination findings that Crocs waived its infringement contentions against the Defaulting Respondents. Id.  The Commission said those findings did not apply to issuance of a Limited Exclusion Order (LEO) or a Cease-and-Desist Order (CDO) against a party found in default pursuant to 19 U.S.C. § 1337(g)(1). Id.  It then reasoned that Crocs need not present infringement contentions as to the Defaulting Respondents in its prehearing brief to obtain relief under § 1337(g)(1). Id.  It went on to find the public interest factors did not preclude exclusionary relief to Crocs and issued an LEO against the Defaulting Respondents. Id.

Crocs filed its Notice of Appeal on December 22, 2023, to challenge the no violation finding as to the Active Respondents and the entry of an LEO, rather than a General Exclusion Order (GEO), against the Defaulting Respondents. Id. at *2.  Instructive for the Court on timeliness of the appeal as to the no violation finding were Allied Corp. v. Int’l Trade Comm’n, 782 F.2d 982 (Fed. Cir. 1986), and Broadcom Corp. v. Int’l Trade Comm’n, 542 F.3d 894 (Fed. Cir. 2008). Id. at *2-3.  The Court found both decisions “instruct that in investigations that have a mixed result of a violation finding (subject to a presidential review period prior to the 60-day appeal window starting) and a no-violation finding (not subject to a 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.” Id. at *4.  Under this precedent, the Court said that when the Commission’s no violation finding as to the Active Respondents was entered there was no presidential review period and no other administrative proceedings for that finding—unlike for entry of an exclusion order against the Defaulting Respondents. Id.  The no violation finding was thus a final decision 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. Id.  That appeal period ended on November 13, 2023. Id.  The December 22 notice of appeal as to the no violation finding was therefore untimely. Id. (discussing and rejecting Crocs’ timeliness arguments).

Ultimately, the Court held 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 respondents” and that “there will be different deadlines to file an appeal for such decisions.” Id.  It then dismissed the appeal as to the no violation finding against the Active Respondents as untimely and went on to consider the appeal from the entry of a LEO instead of a GEO against the Defaulting Respondents, which was deemed timely. Id. at *4-6.  On that issue the Court affirmed the Commission’s decision, holding that sufficient basis for issuance of a LEO was provided and that the Commission’s actions were not arbitrary, capricious, or an abuse of discretion, or otherwise not in accordance with the law. Id.