We said it might happen and lo and behold it has; Vans is suing MSCHF for their “Wavy Baby” shoes. It seems to be a part of MSCHF’s marketing tactics to allow themselves to become the targets of litigation in the U.S. (remember the Satan Shoes?) but that could one day soon backfire.
Vans are not pleased with MSCHF, or more accurately, their parent company VF Corp isn’t happy. In a newly filed complaint as acquired and reviewed by The Fashion Law, Vans are claiming that “MSCHF recently embarked on a campaign to piggy-back on Vans’ rights and the goodwill it has developed in its iconic shoes” with a new pair of shoes that “blatantly and unmistakably incorporates Vans’ iconic trademarks and trade dress.”
That term, “trade dress”, is one of the most telling in the lawsuit in regard to Vans’ motivations. How Vans have described their “OLD SKOOL Trade Dress” as a “distinctive combination of source-identifying elements” that include:
There are other complaints as well relating to the waffle shoe sole, the placement of the heel tab, and even the shoe box all of which are too similar to Vans’ IP. Vans have called out MSCHF on trying to “skip the significant investments required to develop original, authentic, and high-quality shoes, and instead chose to free-ride off Vans’ reputation and popularity.” Vans argue that MSCHF’s product will “intentionally confuse consumers.”
MSCHF have hit back in a statement alleging that Vans tried to “settle with us [MSCHF] proactively” but it turned out that “they were shaking our hand at the same time they were stabbing us in the back.” What do they mean by this? Turns out they had reached a deal “To have the [Wavy Baby] drop go live [on April 18], they offered specific terms (as recently as 24 hours ago) asking for, among other things, half the profits and also four pairs of shoes for themselves. They also indicated they were willing to meet about future collaborations LMAO.”
So do Vans have a case? Absolutely. Will they win? It’s difficult to say as MSCHF argue in that “Standard shoe industry practice is: steal a sole, steal an upper, change a symbol. What a boring use of cultural material. Wavy Baby is a complete distortion of an entire object that is itself a symbol.” They go further to add some shade and facts, “In 50 years of sneaker releases, never have any of their shoes gotten this much attention pre-release. The Wavy Baby is transformational above and beyond anything Vans would ever attempt.”
That is a good point. This isn’t a shoe that Vans would ever have released. Hell, not a single sneaker brand would have released something like the Wavy Baby. It is quite transformative despite its obvious homage to skate shoes. That’s really what this is about, the line between homage and theft. Where is the line that allows you to build something new from an already existing template? Is this the Wavy Baby so transformative that it rises above Vans’ trade dress?
Which Side is Precedent On?
To maybe gauge how this will go for MSCHF, take for example Vans’ current legal battle with American retail giant Walmart. Vans allege that Walmart is also infringing on its “OLD SKOOL Trade Dress.” The U.S. District Court for the Central District of California granted Vans’ motion for preliminary injunction as “Vans is likely to succeed in showing that its trademarks and trade dresses are valid and protectable.” The Court found that “Vans’ evidence of loss of market control, consumer confusion, and the poor quality of Walmart’s shoes is sufficient to establish that [it] is likely to suffer irreparable harm absent injunctive relief.”
Very similar arguments are being made against Walmart as are being laid on MSCHF. There is a key difference though. MSCHF have completely revamped and deconstructed the Vans’ template. They didn’t just release the same shoe with a few slight changes – the whole shoe is VERY different; you only have to look at the wavy sole that fundamentally changes the silhouette of the shoe. It’s a far more difficult case as the Walmart shoes do not have any real transformative elements as the Wavy Baby and that may be the deciding factor.
Did MSCHF push it with their nods to Vans? Absolutely. It’s part of their strategy to get the word out without having to spend on marketing. There’s just the matter of exuberant legal fees I guess, but it’s possible the exposure is more cost effective than standard marketing would be. Is the controversy worth it or will it eventually backfire? It’s hard to say but with their plans to expand into a larger sneaker brand it may be a bad idea to continue down this path. But then again, they are called MSCHF so maybe it’s part of the brand to cause mischief. It could be a costly part of their brand identity though.
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