Converse v. ITC… High fashion to the rescue?

Earlier this year, Nike’s Converse brand challenged a rather disappointing ruling that their Chuck Taylor All Star trade dress does not qualify for the protection of the Lanham Act. While their shoes are generally affordable and accessible, the All Star was a shoe originally created by them in 1917 (named Chuck Taylor later on after an employee and basketball player). Collaborations and new styles are still rolling in for this 100 year-old design with brands such as Missoni, COMME des GARÇONS PLAY, and Nike participating.

This caught the attention of some notable names in high fashion, and they are, not surprisingly, quick to jump to action. Tiffany & Co., Christian Louboutin, and the Fashion Law Institute have filed an amicus brief to discuss the matter of exclusive use of trademark, and determining secondary meaning through trade dress. Understandably, both luxury retailers have high stake interest in the outcome of this battle; the blue box and red sole have both experienced first hand how fickle the marketplace can be.

Of course, we all know what happens when you don’t address potential infringement soon enough. In the previously discussed Fenty fiasco, Forever 21 won over Puma in their most recent IP infringement dispute.

In an industry where copies are made at the speed of light with the click of a button, the brief encourages the courts to take care with how much emphasis is placed on exclusivity in deciding secondary meaning. It is made abundantly clear that the brief is not meant to take a particular stance on whether the Converse Midsole Trademark should be protected as trade dress. Instead, they are seeking to shed light on the weight of their decision and how it affects various types of fashion and related industries.

We’re strapped in and laced up for this one. Follow up and details of the originating cases to come soon!

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