MSCHF's parody-shoe defense died on appeal, and 4,306 pairs stayed frozen

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.