MANHATTAN (CN) — The Second Circuit found on Tuesday that Vans, famous for its waffle-soled shoes, is likely to succeed in its lawsuit against a Brooklyn-based company for ripping off its iconic “Old Skool” skater sneakers.
According to the decision affirming a lower court’s ruling, novelty goods maker MSCHF altered Vans’ sneaker by distorting their trademarks and logo, “resulting in a shoe that was ‘exceedingly wavy.’”
MSCHF released its “Wavy Baby” shoes, created in collaboration with rapper Tyga, on April 18, 2022, and sold out in an hour. The shoes went for $220 a pair.
The Second Circuit also affirmed a federal judge’s order that MSCHF should escrow its revenues from the sneaker sales and not fill any orders, nor advertise or sell Wavy Baby shoes, while the case proceeds.
In its decision, the Second Circuit pointed to a 2023 U.S. Supreme Court decision, Jack Daniel’s Properties v. VIP Products, that found First Amendment protections did not apply if “an alleged infringer used another’s trademarks for an expressive purpose.”
In the Jack Daniels decision, the Supreme Court found VIP Products used the whiskey company’s bottle as source material when creating its dog toy called “Bad Spaniels.” The dog toy was designed to look like a bottle of Jack Daniel’s whiskey, with some playful changes, the nation’s high court found.
“Here, MSCHF used Vans’ marks in much the same way that VIP Products used Jack Daniel’s marks — as source identifiers,” a panel of judges for the Second Circuit said in their decision.
The case appeared before judges Dennis Jacobs, a George H.W. Bush appointee; Denny Chin, a Barack Obama appointee; and Stephen Robinson, a George W. Bush appointee.
The court found that, riffing off Vans’ iconic “Old Skool” sneaker, the Wavy Baby shoes distort Vans’ black and white color scheme by making the traditional design wavy. The shoe also mimics Vans’ trademarked logo and replaces the brand with the word “wavy.”
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