National Law Review
On December 5, 2023, the Second Circuit Court of Appeals issued a precedent-setting decision in favor of the prominent skateboarding footwear and apparel brand, Vans.
The decision centered on the satirical art collective MSCHF’s product, the Wavy Baby sneaker, which Vans contended infringed their signature Old Skool shoe. The decision has implications for creators across industries, as it explores the delicate balance between upholding trademark protections and preserving the freedom of artistic expression.
The dispute arose when MSCHF released its Wavy Baby shoe, which Vans claimed violated its registered Old Skool trade dress. Vans alleged that the design elements of the Wavy Baby shoe closely resembled the iconic Old Skool design, resulting in consumer confusion. Vans sought a temporary restraining order and preliminary injunction to halt the sale and marketing of the Wavy Baby shoe.
In response, MSCHF invoked the First Amendment and argued that the Wavy Baby shoe was a parody work of artistic expression and therefore protected by the First Amendment. MSCHF asserted that their artistic reinterpretation was a commentary on the dichotomies encapsulated by the Old Skool shoe, which straddles “niche and mass taste, functional and trendy, utilitarian and frivolous.”
Van’s “Old Skool” Shoe MSCHF’s “Wavy Baby” Design
The court found that the Wavy Baby shoe lacked elements of satire or humor that would clearly differentiate it from Vans’ trademark. MSCHF’s admission that the Wavy Baby concept started with the Old Skool shoe was held against them and viewed by the court as an attempt to leverage the established goodwill of the Vans brand. The court pointed out that while MSCHF was free to critique sneaker culture and consumerism, it crossed a line when it used Vans’ trademarks to identify the source of its own product. The court also rejected MSCHF’s claim that the Wavy Baby shoes were intended to be works of art, not functional shoes, noting that MSCHF had marketed the Wavy Baby shoes as wearable footwear and they were competitively proximate to Vans’ own products. After finding evidence of consumer confusion, the court affirmed the district court’s preliminary injunction prohibiting MSCHF from selling or marketing the Wavy Baby shoe.
More at
