Tyga Sneaker Designer Wants Appeals Court to Overturn Vans Ruling
In a notice filed in court late Monday, MSCHF said it would launch an appeal to the U.S. Court of Appeal for the Second Circuit seeking to overturn the Friday decision, which said Tyga’s sneaker had “striking visual similarities” to Vans‘ Old Skool and had likely violated trademark law.
The new filing did not contain any details about MSCHF’s plans for appellate arguments. However, the battle before the Second Circuit will likely focus on whether the Wavy Baby was an “expressive work”, which is protected under the First Amendment. This is a crucial distinction since such works are allowed to use real-life trademarks.
The notice indicates that MSCHF intends to continue fighting. The company’s attorneys had already vowed to do so, saying they would pursue “all available appeals.” But last summer MSCHF quickly surrendered when hit with a similar restraining order in a case filed by Nike over Lil Nas X’s Satan Shoe.
Tyga posted the Wavy Baby on Instagram on April 6, sparking a lot of buzz and immediate comparisons with Vans. Footwear News said the shoe “appears to be loosely based on the classic Vans Old Skool” that had been altered with a “wave-like aesthetic.” The site HighSnobiety went bolder: “MSCHF & Tyga’s Insane Skate Shoes Look Like Liquified Vans.”
Three days before the shoes were set to drop on April 18, Vans filed a lawsuit calling MSCHF’s sneakers “blatant trademark infringement” and demanding an immediate restraining order. MSCHF claimed that the Wavy Baby, a surreal, warped, version of the Old Skool, was an art project and was intended to criticize the “consumerism inherent within sneakerhead culture .”
But, on Friday, U.S. District judge William F. Kuntz issued an interim restraining order that would prevent any further sales of this shoe. He ruled that the consumers were likely to mistakenly believe that Vans was involved in the project. He said that Wavy Baby was more like a shoe brand than an art installation.
“Despite defendant’s assertions the Wavy Baby shoes belong in museums and galleries for exhibition, the production of 4,306 pairs of shoes places the Wavy Baby shoes on a mobile footing vastly different from one found at the Brooklyn Museum,” the judge wrote.
Although the ruling isn’t final, it is not good news for MSCHF. It strongly suggests that Vans will win the lawsuit in long-term. Although nearly all Wavy Baby pairs have been sold and shipped, Judge Kuntz ordered that the company keep all the revenue from them in escrow to be repaid to the consumers if Vans prevails.
The appeal to the Second Circuit will officially kick off in the coming months as each side files more detailed briefs describing their arguments.
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