Intellectual Property Insights from Fishman Stewart PLLC
Newsletter – Volume 22, Issue 16
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Does Free Speech Protection Apply to Shoes?
Does freedom of speech apply to shoes? That’s the question presented in a trademark lawsuit brought by Vans against MSCHF, a Brooklyn-based art collective behind musician/artist Tyga’s “Wavy Baby” sneaker design. Vans claims the Wavy Baby shoe design infringes its trademark and trade dress rights related to its Old Skool shoes and other products. MSCHF insists the design represents a form of commentary that is protected by the First Amendment because the Wavy Baby shoe design is a parody of the Old Skool shoe design. Check out a side-by-side comparison photo of the shoes.
Vans secured a temporary restraining order and preliminary injunction to stop MSCHF from continuing to sell the Wavy Baby sneakers. MSCHF argued that the shoe design was a parody meant to comment on “sneakerhead” culture and Vans’ “outsized role” in that culture. However, the federal judge assigned to the case was not persuaded that consumers “got the joke.” The judge reasoned that the Wavy Baby sneakers had already confused consumers and thus could not be a parody.
Interestingly, the court did not consider the usual test that applies in cases where a party claims a parody defense in expressive works such as movies, plays, and video games—and even consumer items such as dog toys. On the one hand, it makes sense to apply free speech principles equally to all forms of speech rather than allow a court to pick and choose what mediums of free speech should have more, less, or no protection at all, or require that all consumers be “in on the joke.” On the other hand, applying traditional First Amendment principles to consumer goods may open the floodgates of court-sanctioned infringement by granting constitutional protection to counterfeiters because their knock-off products parody a legitimate brand or are a commentary on consumerism.
MSCHF has appealed the decision to the U.S. Court of Appeals for the Second Circuit. Now the appellate court has the difficult task of balancing freedom of expression without turning the First Amendment into a free pass for counterfeiters. This case will surely be watched by artists and trademark owners alike. We will keep you posted with any developments!
Published August 5, 2022
The Litigation War Room: Episode 20
Hosted by litigation attorney Maxwell Goss, the Litigation War Room offers great stories and great insights from some of the nation’s most accomplished courtroom lawyers.
On this episode, Maxwell Goss speaks with prominent criminal defense attorney Neil Rockind. Neil talks about his victory in securing the acquittal of an individual charged with reckless driving following the highly publicized tragic death of a police officer. Neil shares insights on many aspects of trial practice, including the importance of humanizing the defendant, dealing with public scrutiny in high-profile cases, and how cross-examination can make or break your case.
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Both trademark law and copyright law may protect your logo, although the protection they provide differs. Trademark law would prohibit the unauthorized use of another’s logo that is sufficiently similar to your logo such that it is likely to cause confusion in the marketplace.
In the U.S., copyright protection generally does not extend to “useful” articles, like shoes, but can protect the designs on shoes, like that of the Yeezy Boost 350 sneakers. However, in Italy, the global fashion powerhouse since the 15th century, copyright law can protect shoes—like Moon Boots.
Under US copyright law, in most instances, if an independent designer creates your logo, then the independent designer, not you as the contracting party, would own the copyright.
Consumers have grown accustomed to seeing knock-off costumes based on popular celebrities and movie or book characters. Some of these knock-off costumes, while attempting to skirt intellectual property violations, are providing unexpected humor for shoppers.
Should a 19-year old’s consent to their NIL rights be binding as they mature? Should unilateral revocation of NIL rights be permitted?
Trademarks are an important aspect to a business’ success. They potentially are anything that could be perceived by consumers to identify one merchant’s goods or services.
After a 37-year absence, the United States Football League (“USFL”) returned this year for another season!… Or did it?
Mickey Mouse’s copyright is set to expire at the end of 2023—nearly 95 years after his first iteration, better known as “Steamboat Willie,” was created on October 1, 1928.
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