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Vans gets injunction against Tyga and MSCHF’s Wavy Baby trainers
By Chris Cooke | Published on Tuesday 3 May 2022
A New York court has issued a temporary restraining order stopping Tyga and MSCHF from selling and promoting their Wavy Baby trainers following legal action filed by shoe maker Vans.
MSCHF is also the company behind Lil Nas X’s Satan Shoes which resulted in a similar legal run in with Nike last year, the Satan Shoes actually being Nike trainers that had been meddled with.
That particular dispute was settled after MSCHF agreed to recall all the Satan Shoes it had sold. But the legal bust up ensured that the already controversial collaboration with Lil Nas X was an even bigger news story, and it also provided the rapper with an entire marketing concept for his next single release campaign.
The Wavy Baby project with Tyga is more ambitious in terms of the shoe itself. Although clearly influenced by Vans’ products, they have been designed to look digitally warped and, I guess, a bit wavy.
Responding, Vans said in a legal filing last month that the latest MSCHF shoes “blatantly and unmistakably incorporate Vans’ iconic trademarks” and that both the company and Tyga had “shamelessly marketed the Wavy Baby shoe in a direct effort to confuse consumers”.
For its part MSCHF insisted that the Wavy Baby trainers were a statement about the nature of the sports shoes business and should therefore be protected by its free speech rights. “Standard shoe practice is: steal a sole, steal an upper, change a symbol”, it said. “What a boring use of cultural material. Wavy Baby is a complete distortion of an entire object that is itself a symbol”.
MSCHF was also keen to stress that its shoe wasn’t identical to any Vans product, because – you know – it’s all wavy, and therefore the idea that its latest shoe project would confuse consumers into thinking it was an official Vans-endorsed venture wasn’t credible.
However, the judge hearing the case did not agree. He said that in trademark infringement cases like this, marks need not be identical in order for there to be a case for consumer confusion. Indeed, he added, “independent sources” had reported that consumer confusion had actually occurred regarding the latest MSCHF shoes and their possible link to Vans.
As for the free speech element, while the wider project might constitute parody, the judge said, “the Wavy Baby shoes and packaging in and of themselves fail to convey the satirical message”.
With all that in mind, the judge issued the preliminary injunction Vans had requested stopping MSCHF and Tyga from selling and promoting the shoes.
Responding, legal reps for MSCHF told Law360 that the court had “failed to recognise MSCHF’s First Amendment rights to artistic expression, regardless of the particular medium or form of that expression, and omits any discussion of Rogers v Grimaldi, the seminal Second Circuit case protecting artistic expression”.
As a result “MSCHF will continue to litigate this case”. Partly to stand up for those free speech arguments, presumably. Although maybe also to keep the story in the news – because all that extra attention is good for MSCHF and Tyga, of course. But will any of this legal wrangling form the narrative of Tyga’s next music video? We shall see.
