In 2015, adidas sued Skechers for its Onix sneaker, a shoe that looked like nothing so much as a direct knock-off of adidas' Stan Smith. This kind of blatant rip-off isn't new — sneaker companies have a long history of ripping off other sneakers designs. What did make this case unique, though, is the ruling in the lawsuit adidas brought against Skechers: A federal judge ordered Skechers to stop selling its Onix sneaker in February 2016, stating that he believed the sneaker to be a direct replication of the Stan Smith. That may seem like it should be common sense, but astoundingly, many sneakers companies have been getting away with mimicking previous creations and have been for years — all because it is legally allowed.
Companies such as Hender Scheme, Celine, Saint Laurent, Calvin Klein, Skechers, and many others have been accused of copying designs in the past. When a shoe gains popularity and does well in terms of sales and recognition, it is often commonplace for that idea to be copied by another company. For example, in addition to the adidas Stan Smith case, Converse sued 31 companies in October 2014 for infringing upon the Chuck Taylor. While the Stan Smith decision and Converse lawsuit have spurred discussion, the frequency of companies copying other companies’ shoes is only growing.
Typically, all copycat sneaker lawsuits usually settle before a final decision is issued, meaning that companies continue to take advantage of a broken system. But, in the Stan Smith case that went to trial, trademark law is what helped adidas stop Skechers (copyright and patent law are not available to protect sneaker designs). In the past, courts have refused to recognize sneaker designs as valid trademarks in the first place. Without trademark protection, companies are free to reproduce sneakers as they wish. The only way to gain this protection is to prove that the design is “distinctive” and “non-functional.”
All sneakers are inherently distinctive in that every silhouette, besides those that are copied, is different in its own way. Whether it’s the sole, upper, color, eyelets, or tongue of the shoe, every shoe is unique. You can also make the argument that certain sneakers are so recognizable that it immediately registers a brand name in consumers’ minds. Who wouldn’t recognize the classic Stan Smith as an adidas design? Who wouldn’t associate the shoes made popular by the likes of Nike, Air Jordan, Converse, and others who have also been victim to serial replication? Functionality is more complicated; the design of sneakers are not functional, because the design of the shoe as a whole is what seeks protection, rather than individual features of a shoe.
Trademark law serves two important purposes: 1) to aid consumers in telling competing products or services apart, and 2) to provide rights for and protect the producer of a particular product or service.
As to the first purpose, trademark law helps consumers by evaluating whether a “likelihood of confusion” exists as to the origin of the product or service. It is reasonable to assert that everyday consumers could confuse Hender Scheme’s iteration of the Air Jordan IV for Jordan brand’s actual Air Jordan IV. In fact, upon close examination, not even the federal judge in the Stan Smith case could tell the difference between the original and replica. Although it may be more difficult to argue that there is a “likelihood of confusion” for lesser-known brands, these brands are less likely to have copycats, as the primary motivation for replicating designs is the popularity of the original creation.
As to the second purpose of trademark law, it suffices to say that adidas, along with other companies, have likely lost millions of dollars of revenue due to other brands copying them. If a creative product is being ripped off time and time again to the tune of millions across the industry, the law should step in to protect the companies who made them first. It is simply not fair to designers who put their blood, sweat, and tears into creating and executing a shoe. It takes a tremendous amount of skill and ingenuity to design original and innovative sneakers and technology. The replication of this process in the sneaker industry stunts creativity and hinders the ability of designers to create in a space that is free from duplication. Trademark protection would allow shoe designers, during the creative process and after the shoe is available to the masses, to have the peace of mind that another designer will not imitate and exploit their work.
It’s looking like there is now hope. As exhibited by the adidas Stan Smith decision, it seems that courts may begin to regularly recognize the protection of silhouettes by virtue of trademark law. The ultimate outcome of the Converse case (if it does not settle) will play an important role in this problem. As this issue heats up, it will be interesting to see how many other companies will join in, begin to stand up for themselves, and sue for trademark protection.
Jared Goldstein is a legal intern at Complex. You can follow him on Instagram here.