In the most recent chapter of a suit brought by Vans against MSCHF – which labels itself as more of an “art collective” than a “company” – and collaborator Tyga, rapper and shoe designer, MSCHF is claiming that their very-similar-to-Vans shoes are protected by the First Amendment.
In April, Vans sued the Brooklyn-based MSCHF for trademark infringement, dilution, unfair competition, and false designation of origin.
This is not MSCHF’s first infringement rodeo. They sold a “holy” version of a Nike-style shoe without actually collaborating with the brand. The big difference in this case: Vans reacted.
As a picture is worth a thousand words, I will lead with images of the shoes in question.
This visual comparison was featured in an article:
The top shoe was created and sold online for $220 by MSCHF / Tyga under the name “Wavy Baby.” The bottom shoe is a classic Vans skater shoe design, which typically retails in the $50-70 range. Before the suit in April, MSCHF had upwards of 4300 pairs for sale online.
Likelihood of Confusion
In late April, a federal judge issued a temporary restraining order and injunction, essentially shutting down MSCHF’s sales of the Wavy Baby sneaker. The judge sided with the dominant complaint from Vans: Consumers were buying the shoes under the belief that it was legitimate collaboration with Vans.
Free Speech vs. Intellectual Property
MSCHF asserted that their “microwaved” version of the shoe was transformational enough to count as parody. But the judge reasoned that parodies need to wink at their audience a bit – that is, at some point, it needs to become apparent to the viewer that the satirical piece is not the actual piece on which it is commenting.
After the injunction, MSCHF came back with an argument stronger than intellectual property transformation. They admitted that their sneakers were inspired by the distinctive mark of Vans, but they claimed their Wavy Babies are an expressive work commenting on consumerism, entitled to First Amendment protection. They supported this by adding that they were not really profiting from sales of the shoes.
This leaves several questions to be weighed, as MSCHF and Tyga hold on to their appeal. Does it cost $220 to manufacture this wavy version of Vans? How does selling the Wavy Baby sneaker comment on consumerism? How is it not trading on the established mark of Vans? Or are we all missing the point that MSCHF is trying to make?