A federal appeals court has sided with Vans and ruled that Tyga‘s “Wavy Baby” sneakers – a parody of the company’s classic Old Skool – likely violate the shoe company’s trademarks.
Released last year by a New York art collective called MSCHF, the sneakers were a clear riff on the Vans shoe – a warped, surreal version of the Old Skool. Vans filed a lawsuit calling it “blatant trademark infringement, but the creators claimed that it was legal parody protected by the First Amendment, designed to criticize “sneakerhead” consumerist culture.
In a ruling Tuesday, the U.S. Court of Appeals for the Second Circuit didn’t buy that argument, upholding an earlier ruling that banned MSCHF from selling any more pairs of Wavy Baby. The court said that “no special First Amendment protections apply” and that the sneaker likely violates Vans’ trademark rights.
“If a parodic use of protected marks and trade dress leaves confusion as to the source of a product, the parody has not ‘succeeded’ for purposes of the [federal trademark law], and the infringement is unlawful,” the court wrote.
Tyga announced the Wavy Baby in April 2022, sparking plenty of buzz but also immediate comparisons to Vans. Footwear News said the shoe “appears to be loosely based on the classic Vans Old Skool” that had been altered with a “wave-like aesthetic.” The site HighSnobiety went with a bolder headline: “MSCHF & Tyga’s Insane Skate Shoes Look Like Liquified Vans.”
Three days before the shoes were set to drop on April 18, Vans filed a lawsuit – claiming MSCHF’s sneakers violated its trademark rights and demanding an immediate restraining order. (The lawsuit did not name Tyga, whose real name is Micheal Stevenson, as a defendant.) Legal trouble was nothing new for MSCHF: the group had previously partnered with Lil Nas X to release a “Satan Shoe” that looked like a pair of Nikes – and had been promptly hit with a similar infringement lawsuit from that sneaker giant.
In the case over Tyga’s sneaker, Vans that consumers would think Wavy Baby was an authorized product artist endorsement deal rather than a parody by a separate company. The company cited previous partnerships with A$AP Rocky, Metallica and Foo Fighters.
“Given Vans’ history of collaborations with musical artists, on information and belief, the collaboration between MSCHF and Michael Stevenson is intended to deceive consumers into believing they are
purchasing a product made by, sponsored by, approved by, or otherwise associated with Vans,” the company’s lawyers wrote at the time.
MSCHF fired back with the First Amendment. It admitted that the Wavy Baby was based on the Old Skool, but said it had a legal right to use the shoe as “the cultural and physical anchor when creating its art.” The company said it wanted to critique “consumerism inherent in sneakerhead culture” and “the phenomenon of sneaker companies collaborating with anyone to garner clout and shoe sales.”
Weeks later, a federal judge rejected those arguments and issued a restraining order banning MSCHF from selling any more Wavy Babys. In issuing his ruling, Judge William F. Kuntz said that he – and, more importantly, consumers – didn’t quite get the joke.
“Whatever the actual artistic merits of the Wavy Baby shoes, the shoes do not meet the requirements for a successful parody,” the judge wrote at the time. “While the manifesto accompanying the shoes may contain protected parodic expression, the Wavy Baby shoes and packaging in and of themselves fail to convey the satirical message.”
On Tuesday, the Second Circuit upheld Judge Kuntz’s ruling and injunction. Among other reasons, the court cited a recent Supreme Court ruling in which the justices ruled that Jack Daniels could sue over dog toys that parodied its whiskey bottles – a decision that lowered First Amendment protections for such parodies.
Attorneys for both sides did not immediately return requests for comment.