Intellectual Property Insights from Fishman Stewart PLLC
Newsletter – Volume 22, Issue 16
Share on Social

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.
Related Content from Fishman Stewart
People like tacos on Tuesdays. They just do. It’s even fun to say: “Taco Tuesday.” But since 1995, Registrant has owned a federal trademark registration for “Taco Tuesday.” Not cool.
The US Copyright Office recently made headlines for partially revoking a copyright registration it previously issued for an AI-generated graphic novel. Artist Kristina Kashtanova used the Midjourney platform to create images that she included in her graphic novel called Zarya of the Dawn.
Ed Sheeran recently successfully defended against a copyright infringement lawsuit over his 2014 hit “Thinking Out Loud.” Songwriter Ed Townsend’s heirs brought the suit alleging Sheeran had infringed Townsend’s copyrights in the 1973 Motown classic, “Let’s Get It On” which Townsend co-authored with Marvin Gaye.
American publishing houses consistently snapped up the works of the famous British author, re-published them in cheap editions, which sold all over the country, and they pocketed the proceeds without any remuneration to Charles Dickens.
For many of us, the term “Easter egg” conjures up memories of dying hard-boiled eggs in bright colors or hunting for treasures and candies stuffed inside plastic orbs hidden around the neighborhood.
When a Bad Spaniel leaves a doggy stain on a famous brand’s proverbial carpet, even the Supreme Court can have fun.
Each of us is creative. The key is to leverage that creativity, converting it into an intellectual property asset that enhances enterprise value.
People are familiar with the most famous examples of trademarks which have been “lost”—or almost lost.
If you are looking to capitalize on the NCAA tournament, make sure to draw up your promotional play with a trademark attorney beforehand.
This practice is often called the “Poor Man’s Copyright” and the idea has been around for a long time. The theory is that mailing a copy of a work to yourself will provide you with certain legal rights akin to a copyright registration so long as the envelope remains sealed and bears a postmark by the United States Postal Service.
IDENTIFYING, SECURING AND ADVANCING CREATIVITY®
