On Tuesday, the U.S. Court of Appeals for the Second Circuit upheld a previous victory for Vans in its bid to block parody art collective MSCHF from selling its “Wavy Baby” shoes.
The appeals court reaffirmed the previous decision that MSCHF’s parody of Vans’ “Old Skool” shoes are likely to cause confusion amongst consumers and that the Brooklyn collective is not entitled to First Amendment protections that can apply to works of art in trademark cases.
The three-judge panel added that the First Amendment did not apply because MSCHF was using Vans’ trademarks to “brand its own products,” citing a recent U.S. Supreme Court decision for Jack Daniel’s against dog toys that parodied its whiskey bottles.
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“We conclude that the Wavy Baby does create a likelihood of consumer confusion, and the district court correctly concluded that Vans is likely to prevail on the merits,” the panel of judges on the Second Circuit wrote. “It did not exceed its discretion by enjoining MSCHF’s marketing and sale of the Wavy Baby.”
MSCHF released its “Wavy Baby” sneakers in collaboration with rapper Tyga in April 2022. The release of 4,306 pairs sold out in an hour. The shoes went for $220 a pair.
Shortly after going on sale, Vans filed a motion for a temporary restraining order and preliminary injunction against MSCHF. After oral arguments that same month, the district court granted the temporary restraining order and injunction, concluding primarily that Vans had shown a significant danger of consumer confusion.
The next month, Vans accused MSCHF of violating a temporary restraining order that restricts the Brooklyn-based art collective from selling the shoes in question.