The encyclopedia · Legal & Compliance · Legal decision · 2022-2023
MSCHF's parody-shoe defense died on appeal, and 4,306 pairs stayed frozen
MSCHF sold a warped parody of the Vans Old Skool as 'art'; a federal appeals court ruled it a competing product and kept an injunction in place
MSCHF · 2023-12-05
What happened
MSCHF sold 4,306 pairs of 'Wavy Baby' sneakers in April 2022 through its drop app — a deliberately warped, melted-looking version of the Vans Old Skool, marketed with rapper Tyga. Vans sued for trademark and trade dress infringement over the perforated sole, side stripe and heel logos, and won a preliminary injunction from the district court.
MSCHF argued the shoes were parody art protected by the First Amendment under Rogers v. Grimaldi, the standard that shields expressive works using another's trademark. The district court rejected that defense and MSCHF appealed to the Second Circuit.
On December 5, 2023, the Second Circuit affirmed the injunction, applying the Supreme Court's newly decided Jack Daniel's Properties v. VIP Products: because MSCHF used Vans' trade dress as a source identifier on a competing commercial shoe rather than as pure expressive commentary, the heightened Rogers protection didn't apply, and ordinary trademark-confusion analysis favored Vans. It was the first appellate ruling to apply the Jack Daniel's standard.
Why it happened
- MSCHF built the product on Vans' own recognizable shoe shape, so the features that made the parody legible also made it look like a competing product wearing Vans' identity.
- Treating the drop as protected art rather than a commercial good misjudged how a new Supreme Court standard had just narrowed First Amendment cover for parody, a shift that landed mid-case.
The lesson
A parody built on a rival's own product shape reads as commentary to its maker and as trade-dress infringement to a court, and the legal standard for that gap can shift mid-appeal.
Sources
- Pillsbury | MSCHF's Wavy Baby Trademark Case: Second Circuit Applies Jack Daniel's
- Greenberg Traurig | Second Circuit Hands Vans a Win in First Appellate Decision to Apply Jack Daniel's
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