The Brooklyn design studio behind Tyga’s “Wavy Baby” sneaker is already appealing a federal judge’s ruling last week that barred future sales of the shoe.
In a notice filed in court Monday night, MSCHF said it would appeal to the United States Court of Appeals for the Second Circuit to overturn Friday’s decision, which said Tyga’s sneaker bore “striking visual resemblances” to Vans’ Old Skool and likely violated trademark law.
The new filing contained few details about MSCHF’s anticipated appeal arguments, but the looming battle before the Second Circuit will likely center on whether the Wavy Baby is an “expressive work” protected by the First Amendment. This is a key distinction, as such works are given wide leeway to use actual trademarks.
At the very least, the notice indicates that MSCHF plans to keep fighting. Lawyers for the company had already pledged to do so, saying they would pursue “all available appeals”. But last summer, MSCHF quickly surrendered when he was hit with a similar restraining order in a case filed by Nike regarding Lil Nas X’s Satan shoe.
Tyga announced the Wavy Baby in an April 6 Instagram post, garnering a lot of buzz but also immediate comparisons to the Vans. Shoe News said the shoe “seems to be loosely based on the classic Vans Old Skool” which has been modified with a “wave aesthetic.” The website HighSnobiety got bolder: “MSCHF & Tyga’s Insane Skate Shoes Look Like Liquified Vans.”
Three days before the shoes dropped on April 18, Vans filed a lawsuit calling MSCHF’s sneakers a “gross trademark violation” and demanding an immediate restraining order. MSCHF argued that the Wavy Baby – a surreal, distorted version of the Old Skool – was an art project, designed to critique the “consumerism inherent in sneakerhead culture”.
But on Friday, U.S. District Judge William F. Kuntz issued a temporary restraining order blocking any further sales of the shoe. He ruled that consumers were likely to mistakenly think that Vans had been involved in the project. Crucially, he said Wavy Baby looked a lot more like a competing shoe brand than some kind of art installation.
“Despite defendant’s assertions that Wavy Baby shoes belong in museums and exhibit galleries, the production of 4,306 pairs of shoes places Wavy Baby shoes on a very different moving base than that found at the Brooklyn Museum,” wrote the judge.
The decision isn’t final, but it’s not good for MSCHF either; this strongly indicates that Vans will likely win the lawsuit in the long run. And although nearly all of the Wavy Baby pairs have already been sold and shipped, Judge Kuntz ordered the company to hold all revenue generated from them in escrow, to be refunded to consumers if Vans ultimately prevails.
The appeal to the Second Circuit will officially begin in the coming months as each side files more detailed briefs outlining their arguments.