It’s not hard to spot a Puma Fenty Creeper sneaker, the line launched in collaboration with Rihanna in 2015. The company has said the shoe’s thick soles and suede uppers made them an immediate success, selling out every new line almost instantly and even crashing the Puma web site on launch days.
So when Forever 21, the American fast-fashion retailer, debuted a similar shoe at a noticeably discounted price, Puma filed a lawsuit in a California federal court, alleging patent and copyright infringement, among other things.
“The Fenty products are luxury products and, therefore, Puma keeps the volumes small and limits the sales to create desirability not only for the Fenty products but for the Puma brand as well,” the court documents stated.
That was in March 2017. In an interesting development this month, Forever 21 is now saying that it couldn’t have copied Puma’s Creepers, because examples of the shoes have been in the public space for “decades.”
“This style of footwear became fashionable in the years following World War II, seeing resurgences of popularity at various times ever since,” the Forever 21 document reads, therefore rendering Puma’s design patent invalid, and even saying that Puma’s shoe “does not show any spark of originality.”
The Forever 21 claim goes on to say that many of the elements of the shoe, “i.e., having a sole, an upper, an opening near the rear portion, and a closure mechanism — in this case, laces — are functional elements,” serve practical purposes and therefore cannot be trademarked “because there are essentially no alternative ways to accomplish these functions.”
Douglas Hand, a fashion lawyer, called Forever 21’s argument “sound.”
“Factually, when one looks at a shoe with that leveled sole, and even names it a ‘Creeper,’ as Puma did, you’re clearly standing on the shoulders of designers that precede you,” he said. “They were an iconic teddy-boy shoe design, which was reprised by punkers in the Seventies and Eighties. That kind of design has been with us for a long time.”
Still, the terms defined in the Forever 21 case might be too broad, according to Susan Scafidi, a lawyer and founder of the Fashion Law Institute at Fordham Law University.
“If it were true — that having basic elements that define a shoe invalidate a design patent — then there could be no design patents on shoes,” Scafidi said. “When you have copyright protection, it applies to not only what you have created, but to everything else that is, quote-unquote, substantially similar.”
Confused customers are also “a strong indicator of infringement,” said Alexandra Roberts, a trademark attorney and adjunct professor of law at the University of New Hampshire. If a customer were to go to a store, for example, thinking they were buying one brand, but accidentally bought another, this would be grounds for infringement, she said. And, with the large number of collaborations between designers and brands today, this scenario is highly likely.
Puma and Forever 21 did not respond to requests for comment.