In a notice filed in court late Monday, MSCHF said it would launch an appeal to the U.S. Court of Appeal for the Second Circuit seeking to overturn the Friday decision, which said Tyga’s sneaker had “striking visual similarities” to Vans’ Old Skool and had likely violated trademark law.
The new filing contained little detail on MSCHF’s planned appellate arguments, but the impending battle before the Second Circuit will likely center on whether the Wavy Baby is an “expressive work” that’s protected by the First Amendment. That’s a key distinction, since such works are given a wide berth to use real-life trademarks.
At the very least, the notice indicates that MSCHF plans to fight on. The company’s attorneys had already vowed to do so, saying they would pursue “all available appeals.” But last summer MSCHF quickly surrendered when hit with a similar restraining order in a case filed by Nike over Lil Nas X’s Satan Shoe.
Tyga announced the Wavy Baby in an April 6 post on Instagram, sparking plenty of buzz but also immediate comparisons to Vans. Footwear News said the shoe “appears to be loosely based on the classic Vans Old Skool” that had been altered with a “wave-like aesthetic.” The site HighSnobiety went bolder: “MSCHF & Tyga’s Insane Skate Shoes Look Like Liquified Vans.”
Three days before the shoes were set to drop on April 18, Vans filed a lawsuit calling MSCHF’s sneakers “blatant trademark infringement” and demanding an immediate restraining order. MSCHF argued back that the Wavy Baby – a surreal, warped version of the Old Skool – was an art project, designed to critique the “consumerism inherent in sneakerhead culture.”
But on Friday, U.S. District Judge William F. Kuntz issued a temporary restraining order blocking any further sales of the shoe. He ruled that consumers were likely to mistakenly think that Vans had been involved in the project. Crucially, he said that Wavy Baby was far more like a competing shoe brand than some kind of art installation.
“Despite defendant’s assertions the Wavy Baby shoes belong in museums and galleries for exhibition, the production of 4,306 pairs of shoes places the Wavy Baby shoes on a mobile footing vastly different from one found at the Brooklyn Museum,” the judge wrote.
The ruling isn’t final, but it’s also not good for MSCHF; it strongly indicates that Vans will likely win the lawsuit in the long run. And although nearly all pairs of the Wavy Baby have already been sold and shipped, Judge Kuntz ordered the company to hold all revenue earned from them in escrow, to be repaid to consumers if Vans ultimately prevails.
The appeal before the Second Circuit will formally kick off over the coming months, as each side files more detailed briefs outlining their arguments.