Updates to our Terms of Use

We are updating our Terms of Use. Please carefully review the updated Terms before proceeding to our website.

Sunday, May 19, 2024 | Back issues
Courthouse News Service Courthouse News Service

If the shoe fits: Cultural commentary or knockoff Vans? 

A Brooklyn-based novelty company says its new sneakers are commentary on, not a knockoff of, the classic Vans skating shoes.

BROOKLYN (CN) — Attorneys on both ends of a federal lawsuit over novelty skater shoes held up the “Wavy Baby” sneakers in court on Wednesday, each making their case for what the rippled footwear represents. 

Vans has asked a judge to block sales of the shoes, arguing that customers could easily confuse the “blatant knockoff” sneaks as being genuine products of the iconic skateboarding shoe and apparel brand. 

There’s no debate that the black-and-white shoes in question — a collaboration with rapper Tyga — started with Vans’ classic Old Skool design. They feature waffled soles, a red tag and a side stripe. Their creator, Brooklyn-based company MSCHF, argues that was the whole point: The shoes are meant to be a commentary on society, consumerism and Vans itself. 

“It is wavy, it is wobbly … and it is not something that you can easily skateboard in,” MSCHF attorney Megan Bannigan said. 

MSCHF made the shoes by taking a photo of Vans’ Old Skool shoe, running it through Photoshop with a liquify filter, and creating a “crazy-looking, completely surreal” version that took months to turn into a physical item — a total distortion of the original —said Bannigan, of the firm Debevoise & Plimpton LLP. 

While Vans would normally release about 1,000 pairs of specialty shoes, MSCHF created 4,000 pairs of the Wavy Baby. 

“At the present time,” U.S. District Judge William F. Kuntz interjected. “But the Wavy Babies may have wavy babies.” 

His comment was met with laughs in the courtroom, where about a dozen young people filled the first few roles — they were “just fans,” as one attendee identified the group. 

Following their April 18 drop, roughly 280 pairs of the controversial shoes have been distributed, and MSCHF says it won’t create or ship out any more while the lawsuit is pending. That limit creates a doubled-edged sword for the company, Kuntz said, as it’s precisely why Vans wants an injunction. 

“They are not comforted by that,” Kuntz said. “They think it’s a little vague … a little flimsy.” 

Vans attorney Lucy Wheatley bolstered her argument with a slideshow that included side-by-side photos of each shoe, a video in which Tyga microwaves a regular Old Skool sneaker and "turns it into" a Wavy Baby, and quotes from a podcast interview in which MSCHF’s creative director acknowledges that Vans’ shoe was the jumping point. 

Wheatley held up one of each shoe as she argued that the Vans originals — easily recognized even from across the street — are also a means of “creative expression.” 

“This is not a case of art versus commerce,” she said. “It’s sneaker versus sneaker.” 

Wheatley, of the firm McGuireWoods, further pointed out that MSCHF has shown off a pink version of the Wavy Baby. The company responded that it made 100 pairs of that shoe and give six to Tyga, seven to MSCHF friends, and 87 are stashed in the MSCHF office. 

The attorney also pushed back on the idea that the shoes are too impractical to be considered true footwear. 

“It has a flat footbed. You can wear it. I have worn it walking around,” Wheatley said. “They advertise it as a sneaker; there’s no explanation beyond that.” 

Wheatley displayed social media comments from people who claimed they thought the warped sneakers were a collaboration with Vans. 

But those comments can’t be verified, MSCHF’s Bannigan said, and customers aren’t likely to confuse the Wavy Baby for the Old Skool since the shoes are most likely to appeal to sneakerheads who are already "in the know."

“Some of these people even vault them in climate-controlled boxes,” Bannigan said. “That’s how serious they are.” 

Judge Kuntz, a Barack Obama appointee, reserved judgment on the preliminary injunction and temporary restraining order motion. 

Follow @NinaPullano
Categories / Business, Consumers, Entertainment, National

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.