Lawsuits over footwear continue to make headlines in an industry where protection is somewhat difficult to come by. Dr. Martens is working hard to stave off copies and Crocs is escalating matters in its years-long battle with a rival. While counterfeits aren’t central to this week’s discussion, one of the industry’s biggest targets — Alibaba — revealed that it is partnering with New York Fashion Week.
Don’t Copy My Docs
While copyright law leaves designers largely empty-handed in terms of protections (because copyright law fails to protect useful things, such as garments and accessories, in their entirety), smart brands are looking to other statutes for legal protection and recourse. Dr. Martens, for instance, which has been aggressive in recent years in trying to prevent others from using its famous boot design, is looking to trade dress law.
According to the United Kingdom-based footwear brand, its most well-known style consists of a two-tone grooved sole edge, beige stitching in the welt area and a heel loop, and reproductions of those elements give rise to trade dress infringement. This is what AirWair International, a subsidiary of Dr. Martens footwear, alleged in the suit it filed against Steve Madden earlier this year and more recently against online shopping site Wanted Shoes.
While Steve Madden is fighting back — claiming that the problematic design issues are “generic elements of a functional item” and not proprietary to Doc Martens — the boot brand took home a victory last week in its suit against Wanted Shoes, as Judge Susan Illston of the U.S. District Court for the Northern District of California awarded the brand a permanent injunction and the parties settled on an undisclosed damages award.
While high fashion brands have not yet been targeted, they are potentially up next in Dr. Martens’ war on copying. Each season there is a resurgence of a classic footwear staple or two, and ever since Riccardo Tisci showed his own interpretation of Dr. Martens’ classic boot for Givenchy’s spring 2015 men’s wear collection, lookalikes have been all over the runways. There is no saying that Doc Martens will not look to the runway for lawsuit inspiration in the near future.
The Battle Over Crocs
Speaking of trends in footwear, thanks (or maybe no thanks) to Christopher Kane, Crocs are creeping into fashion’s psyche. But while London-based Kane is busy bejeweling the clogs, and adding fur to them for colder seasons, Crocs has been in and out of court in a dispute — or actually, disputes — with footwear rival Dawgs.
Nevada-based Dawgs filed suit against Crocs in July, in the U.S. District Court for the District of Nevada, accusing Crocs of copying one of its trade dress-protected footwear designs. But Dawgs did not stop there. The company also told the court that Crocs, and three of its employees, violated the Computer Fraud and Abuse Act. According to Dawgs, a Crocs employee, who formerly worked for e-commerce platform Zulily, gained access to Dawgs’ Zulily account and attempted to have Zulily cancel Dawgs’ sales promotion, which the e-commerce site allegedly did.
Crocs has responded to these allegations by asking the court to penalize Dawgs, arguing that not only are the claims completely false, but that Dawgs followed up its filing with a massive press campaign, “purposefully subjecting innocent persons to news coverage implying that they are criminal actors engaged in corporate espionage.”
Dawgs has asserted that Crocs’ motion is “baseless and misstates the facts” but nonetheless, Crocs has asked the court to sanction its rival.
Crocs claims that the false allegations and media smear campaign were done in order to boost Dawgs’ profile and diminish its own in connection with the separate, years-long patent lawsuit between the two. In that case, Dawgs filed suit in August 2016, accusing Crocs and nearly 20 of its current and former executives of fraudulently obtaining patents and filing unmerited lawsuits in order to dominate the market for the clog-type footwear.
These battles are proving to be far uglier than the shoes at play.
Alibaba Pairs With NYFW
New York Fashion Week has a controversial new partner, according to a statement from Chinese e-commerce giant, Alibaba. Tmall – one of Alibaba’s platforms – stated this week that it has become an “official partner” of New York Fashion Week: The Shows, in association with Suntchi, “to help U.S. designers and brands leverage Alibaba’s scale and technology to reach the China market for the first time.”
The partnership includes a joint runway show, titled, “NYFW: China Day,” which Alibaba calls “a unique event featuring leading Chinese designers selected from the Tmall’s 2017 ‘See-Now-Buy-Now’ fashion show, during NYFW: The Shows in September 2018.” It will also see select designers from NYFW — including Opening Ceremony and Robert Geller — featured in Tmall’s fashion show, which is slated to take place in October in the run-up to Alibaba’s Single’s Day Global Shopping Festival.
The partnership was formed even though Alibaba has consistently come under fire in recent years — in particular from the fashion industry (by way of lawsuits, such as the ones filed by Gucci, Yves Saint Laurent and Balenciaga) and the U.S. government — for its alleged failure to actively cut down on the rampant sales of counterfeit goods on its platforms.
Julie Zerbo is the founder of The Fashion Law.