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US appeals court fast-tracks hearing on Tyga’s banned shoes

By | Published on Friday 27 May 2022

MSCHF x Tyga - Wavy Baby

The 2022 incursion in the big old battle of the shoes continues, with the US Second Circuit appeals court agreeing to fast-track an appeal filed in relation to Tyga’s Wavy Baby trainers because, you know, free speech and the very fundamental essence of the First Amendment of the American constitution are definitely under threat here.

I mean, if there was one thing the founding fathers were very clear on it was that rappers and their quirky business partners should be allowed to display their wavy shoes in public, and no trademark laws passed by pesky Congress should ever get in the fucking way of that.

So, yes, this is the latest rapper-and-shoe-based legal battle involving MSCHF, the New York-based company that specialises in, well, mischief. Last year the legal sparring was with Nike which took offence at MSCHF and Lil Nas X partnering on the Satan Shoes.

That project involved messing with some Nike trainers in a satanic way in a bid to piss off as many conservative christians as possible. It worked. And the resulting albeit short-lived legal wrangling with Nike provided Lil Nas with an entire marketing concept for his next single.

The partnership with Tyga is a more ambitious project, in that MSCHF has created a new kind of shoe, rather than modifying existing ones. That Wavy Baby trainer is sort of wavy, hence the name. Though the shoe design and accompanying imagery is very clearly influenced by Vans. Indeed, sufficiently influenced, the Vans company reckons, that its trademarks have been infringed.

When Vans sought an injunction stopping the sale and distribution of the Wavy Baby shoes, MSCHF insisted that its right to freedom of expression under the US constitution should gazump any nebulous trademark infringement claims from Vans.

After all, the Wavy Baby trainers were clearly an important statement about the nature of the sports shoes business. Anyone could see that. Except the judge hearing the case, that is.

While the wider project might constitute some kind of political statement, the judge ruled, “the Wavy Baby shoes and packaging in and of themselves fail to convey the satirical message”. Meanwhile, the shoes were similar enough to Vans products to potentially cause consumer confusion. And to that end, Vans got its injunction.

But the lower court judge was clearly talking nonsense. Said MSCHF. Hence it appealing the judgement. Meanwhile, it added, that appeal should be fast-tracked, for two reasons.

First, the injunction constitutes a ‘prior restraint’, ie a government or court instigated restriction on free speech that usually violates the First Amendment. And second, MSCHF has plans to freely express its satirical messages by displaying the shoes at two art galleries this autumn, and the appeals judges better over-turn that unacceptable prior restraining injunction before then.

The appeals court didn’t actually give a reason for fast-tracking the Wavy Baby appeal, but confirmed said appeal will be heard in August.

Welcoming that confirmation, MSCHF lawyer David Bernstein is cited by Billboard as saying: “MSCHF is grateful that the Second Circuit granted its motion to expedite this appeal, which raises critical questions of the intersection of the First Amendment and trademark law”.

“Given that MSCHF plans to display Wavy Baby at the Perrotin Gallery and at Art Basel this fall”, he added, “it was essential that the appeal be expedited so that the Second Circuit can protect MSCHF’s First Amendment rights”.

Vans hasn’t formally commented on the court’s announcement, but it previously objected to the case being fast-tracked, arguing that MSCHF had “manufactured” an emergency by suddenly announcing exhibition plans that hadn’t previously been mentioned. How mischievous.

And so battle of the shoes continues!