I have been a long critic of copyright and trademark claims that seem to be growing exponentially with companies claiming ownership over basic words and images in a feeding frenzy of claims. Despite growing objections of the civil and criminal sanctions imposed under such claims, lobbyists have had little difficulty in expanding these laws and regulations. Now a federal judge has shown just how fluid these claims can be. Because Skechers and Adidas both have classic white tennis shoes with green heels, the federal judge has enjoined Skechers to stop selling the shoe and two other styles “confusingly similar” to Adidas offerings. I see two classic shoes with similar heels. I fail to see why Adidas should be able to claim this “look” as its own property. The order is linked below.
U.S. District Judge Marco A. Hernandez looked at three Adidas trademarks raised by Adidas, including its familiar “three-stripe” logo on athletic shoes, its distinctive Stan Smith white tennis sneaker and its “Supernova” design. However, again, the question is whether no other shoe company can use a three strip design. Adidas stated using the three strips in the 1950s and called the Skechers designs as “a blatant, bad faith attempt to trade on Adidas’ goodwill and to profit wrongfully from consumer’s confusion.”
The most recent claim follows a disturbing trend in copyright and trademark claims over things occurring in public or common phrases or terms. (For a prior column, click here). We have often discussed the abusive expansion of copyright and trademark laws. This includes common phrases, symbols, and images being claimed as private property. (here and here and here and here and here and here and here and here and here and here). This included recently a New York artist claiming that he holds the trademark to symbol π.
At issue was also the “Stan Smith” white tennis shoe with a green heel patch manufactured by Adidas and a Skechers lookalike. One can certainly understand the confusion. However, the design is also incredibly basic, particularly with white tennis shoes. When you pick such a basic design like a green heel on a white tennis shoe, the question is why you should able to prevent others from using the same basic design and, perhaps more importantly, how different must the design be. Can you no longer use a green lip? What is the green was a bit thicker? It is hard to discern where to draw the line. This is a matter of aesthetics for designers who are all working off a classic white tennis shoe template.
Hernandez noted that “[a]lthough Skechers points out minor differences between its Onix shoe and the Stan Smith — that the Onix has five, not three, rows of perforations which extend in a different direction, and that its colored heel patch is a slightly darker shade of green — the unmistakable overall impression is two nearly identical shoes.”
Skechers dismissed the ruling from a business perspective as involving “only three minor and commercially insignificant Skechers styles that have already been discontinued.”
My greatest concern with the expanding copyright and trademark laws is that they are doing the opposite of their intended purpose in stifling rather than fostering creativity. What do you think?
Here is the preliminary injunction: Adidas Injunction Order
Didn’t the judge watch “The Devil Wears Prada”? There is an entire scene in which Meryl Strep explains how cerulean trickled down from the catwalk to JC Penney.
If sketchers would make a men’s and young men’s soccer shoe without the rainbow colors (dunno of adidas copied nike or vis versa there)…. They could make up for this. Indeed a male high schooler’s only soccer shoe choice at academy is ” girl” colors. …mens shoe. Obviously colors matter. My kid liked the “shoes”….i had to remind him he’s color blind ( he is) no way in hell i’ m buying ferry shoes for my boy. Why isnt adidas sueing nike for coping their collir scheme…..ahhh maybe it was visa versa and the all inclusive rainbow colors. Gender benders. Scetcher ought to not gender bend….then we’ll see who copies who. Men colors men business….make men soccer shoes…get the business then you’ ll see adidias giving up the girl colors on men’s shoes and coping you!
I remember, years ago, reading about Diane von Furstenberg, whose wrap dress in the 1970’s caused a major sensation for women around the world. The world was, and still is, flooded with versions of a dress that she popularized so many decades ago. Popularized, however, not invented. I will never forget reading about how the opposing counsel, involved in one of the myriad of lawsuits that she filed over time, defended his company’s use of the wrap dress design, which von Furstenberg had sought to protect as her own, unique and original work. If I recall correctly, he supplied the court with an array of images–some dating back thousands of years–which depicted individuals clothed in garments closely resembling von Furstenberg’s wrap dress. Obviously, as the racks and racks of dresses, found in every department store indicate, von Furstenberg was unsuccessful in securing any sort of protection for her wrap dress design.
I would suggest that the judge get his eyes examined. When he’s through with that, he can get his head examined.
isaac:
This is a legal blog. These past two articles deal with bankruptcy and copyright law as it applies to pop culture. It makes law relevant and current, plus it brings a bit of levity.
Wait a moment. Is the entire “knock off” industry now rendered illegal? Every time Duchess Kate shows up in a new frock, there is a flurry of copies after the real thing sells out. And fashion trends always filter down from the catwalk. Most fashion magazines have an entire “buy it for less” section in which big brands shamelessly copy the work of high end designers.
What’s next? Are they going to copy a completely white tennis shoe? I do not think such basic designs can be copyrighted as creative property. It’s not like a white and green shoe has never been done before. This could also set a precedent in which every possible color combination would be defended in court as proprietary.
They really need to rein in copyright law, which is running amuck.
Copyright, copy wrong. Copy this, copy that, therefore copycat. A shoe is an outline of the foot. I suppose a corporation can have a copyright on the foot. Three stripes and you are out and o u t means out and out you go. Much ado about nothing Judge! And Judge? Whose gavel is that in your hand? Dont you know that I have a copyright on wood gavels? Bang, bang, bo bang, banna fanna fo mang. Fee fi mo jang. BANG! Next case.
good editorial. exactly correct
“My greatest concern with the expanding copyright and trademark laws is that they are doing the opposite of their intended purpose in stifling rather than fostering creativity.”
That all depends on what you believe the purpose of expanding copyright and trademark laws to be. Write them in such a manner that creative attorneys can crawl out of the woodwork and make a fortune. Now that’s a purpose.
Nicely done!
Agree with the general sentiment of the author, but this was a blatant ripoff of thr Stan Smith tennis show that was properly enjoined. Well done opinion.
The Judge’s coffee must have been laced with something, just like the shoes were laced with something.
Stop focusing in on the green found on the body of the shoe and start focusing in on the green Adidas must’ve passed along to this judge to obtain this decision.
This is the second mindless blog by Turley, someone people have applauded. Turley is pablum.
This case reminds me of case involving a musical I saw a couple of years ago called “A Gentleman’s Guide to Love and Murder.” I happened to be in Hartford and a friend recommended that I see this new musical with her. I had no idea what it was about, but I love the theater so it was a go. Within minutes into the musical, I instantly knew that I had seen this somewhere before. In a couple more minutes exactly what the musical was based on, a classic British movie called “Kind Hearts and Coronets” with Dennis Price in the lead and Alex Guinness, playing many roles. The plot, the story, the characters, the themes, the names of the characters, were virtually identical. The musical even took the idea of using one actor to play all the roles that Alec Guinness played so masterfully in the movie. During the intermission, I looked through the playbill, expecting to see something like “adapted from the film Kind Hearts and Coronets.” But no. There was no reference or mention of the movie whatsoever.
Later, I was so intrigued with how a musical could get away without properly crediting the original work on which the musical was based, and lo and behold, I discovered that there was a lawsuit by the holder of the rights to the movie against the owners of the musical. I read the judge’s opinion. The judge basically agreed that everything about the musical was similar to the movie, but still sided in favor of musical owners. His rationale was that both were really based on a novel called “Israel Ran: The Autobiography of a Criminal,” by Roy Horniman.” Never mind that the musical is far closer to the movie than it is to the source novel. And never mind, that all of the musical’s characters in the family were played by one actor, just as Alec Guinness played all of the roles of the family in the movie. The judge said that idea isn’t protected. (Peter Sellers, Jerry Lewis, and Eddie Murphy, for example, have played multiple characters in the same work.)
As I’m reading about this Adidas v. Sketchers case, the thought occurs to me: who is to say that Adidas’s design is totally original? To me, these tennis shoes don’t look all that difference from models that have existed for decades. Perhaps the Adidas was really based on something earlier, like a Puma or a Dunlop brand. Then, Sketchers could argue that they were basing their product on something even earlier.
I realize that copyright law and intellectual/creative property may be treated differently, and the latter may be treated more loosey-goosey by the courts, but I think products are actually far less deserving of such stringent protection than intellectual/creative property, where the protection is really needed. For example, years ago I used to play a guitar that was a knockoff of the Fender Stratocaster, but it was actually far superior to the Strat models that Fender was making at the time. Yet, Fender would go after the company’s who made those guitars, merely because they had similar bodies and configurations, ignoring that the pickups and the hardware in the copycat were actually better than the “original.” Later, Fender started making cheaper versions of their Strats in Mexico, and I considered that far more deceptive than the copycat Strats I’d been playing.
Years ago Harley Davidson attempted to acquire legal protection for their bike’s “sound” resulting from their V-twin engine architecture and firing-sequence (often described as “potato potato potato…). Thank goodness they failed.