Fashion Law

Marant and McQueen copy Adidas Stan Smiths

In 2010, Phoebe Philo, Céline’s Creative Director, wore Stan Smiths at her own runway show. A trend followed, complete with Adidas re-introducing the shoe into the market along with customizable options in 2014. High fashion copycats followed.

Isabel Marant and Alexander McQueen seem to be capitalizing off of Adidas Stan Smith sneakers.

In her SS15 line, Isabel Marant released her “Bart” sneakers that dance the line between paying homage to and infringing upon Stan Smiths. So, after creating one of the most hideous imitated wedge sneakers and ankle boots, Marant is accused of copying Adidas.

In September 2014, Complex quite accurately described the Bart sneakers as a very expensive makeover of the Adidas Stan Smiths. McQueen has also released its own Stan Smith-resembling shoe at an even higher price point than Marant’s. Both brands could potentially face trade dress infringement lawsuits.

As in the 2008 Adidas-America, Inc. v. Payless Shoesource case, where Adidas was awarded damages of $305 million for willful infringement, Adidas can claim protected rights in its Superstar Trade Dress.

The Superstar Trade Dress consists of:

(1) three parallel stripes on the side of the shoe parallel to equidistant small holes; (2) a rubber “shell toe”; (3) a particularly flat sole; and (4) a colored portion on the outer back heel that identifies the shoes as adidas’ brand.

Introduced way back in 1965, the Stan Smiths were the first all-leather performance tennis shoes. Instead of the usual lifted material three stripes, Stan Smiths have three rows of perforated leather.

Trade dress protection

Trade dress protection extends only to design features that are nonfunctional and thus not essential for the use or purpose of a given item. In the U.S., trade dress is covered under the Lanham Act, which is often covered on this blog in trademark discussions.

A fashion designer may get protection for trade dress by proving that his/her design element has secondary meaning to consumers; this requirement is then further limited by the functionality doctrine.

Although registration is not required for legal protection, registration offers several advantages.

To win a trade dress infringement case, the party claiming trade dress protection must show that a considerable number of ordinarily prudent consumers of the type of product in question are likely to be confused as to the source of the goods. So, the Marant shoe with its very similar silhouette and colored heel branding could very likely be found infringing since upon ordinary view confusion is likely. The McQueen’s, sporting a thicker oversized sole may be distinguishable from a distance and as such not cause the necessary consumer confusion.

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