Vans secured a temporary restraining order and preliminary injunction in its trademark infringement lawsuit against Brooklyn art collective MSCHF last week, effectively stopping the sale of the Wavy Baby sneaker that riffs on Vans’ classic Old Skool skate shoe. Judge William Kuntz granted the order in a decision filed to New York’s eastern district court on April 29, writing that the MSCHF sneaker had already confused consumers and could not be considered a parody.
In an email to Complex, MSCHF declined to comment.
The lawsuit brought by Vans reveals new details around the release of the Wavy Baby, a collaboration with rapper Tyga that takes the form of the Old Skool and warps it. MSCHF employees say they released 4,306 pairs of the sneakers in April, setting aside another 280 to address fulfillment errors and requests from museums. They’ve also said that MSCHF is effectively making no money from the sneakers.
MSCHF’s lawyers have argued that the Wavy Baby shoes are intended for connoisseurs who know the difference between this kind of homage and a legitimate pair of Vans. Judge Kuntz, convinced that the MSCHF sneaker had already caused marketplace confusion, sided with Vans in this regard.
“Plaintiffs have sufficiently demonstrated actual consumer confusion,” his order reads. “Multiple independent sources commented on the similarity between the Old Skool shoes and the Wavy Baby shoes.”
It points to an episode of the Complex Sneakers Podcast from April featuring MSCHF chief creative officer Lukas Bentel to illustrate this, referencing his comments on the show. (The program is generously described in the lawsuit as “the quintessential sneakerhead show.”) The order also quotes Complex editor and podcast co-host Matt Welty as saying that the average person would not be able to ascertain the shoe’s true origin without a close inspection.
The decision responds to MSCHF’s argument that few of the people who actually bought the Wavy Baby sneakers were so unsophisticated as not to understand they were a parody of the Vans Old Skool, calling that “merely supposition.”
In his order, Judge Kuntz goes on to write that the Wavy Baby sneaker does not satisfy the requirements to be considered a parody of Vans’ Old Skool. The MSCHF shoes lack, he says, an “element of satire, ridicule, joking or amusement” to demonstrate to a layperson that they are not manufactured by Vans.
In granting Vans’ temporary restraining order and preliminary injunction, the court has forbidden MSCHF from fulfilling any more orders for the Wavy Baby or any similar shoes. (MSCHF has teased a pink pair, but, in the podcast episode from last month, Bentel had no comment on whether that version would be released.) The filing instructs MSCHF to cancel any orders for the shoes and escrow any money from those that can’t be canceled so that refunds can be issued should Vans prevail in the lawsuit.
