Intellectual Property News and Reports

Defendant-Appellant MSCHF Product Studio, Inc. (“MSCHF”), the creator of the Wavy Baby sneaker, appeals from the April 29, 2022 order of the United States District Court for the Eastern District of New York (Kuntz, J.) granting the request by Plaintiffs-Appellees Vans, Inc., and VF Outdoor, LLC (collectively “Vans”) for a temporary restraining order and preliminary injunction enjoining MSCHF’s use of Vans’ trademark and trade dress in the Wavy Baby sneakers.

On appeal, MSCHF argues that the district court erred by failing to apply enhanced First Amendment protections in its likelihood-of-confusion analysis under the Lanham Act and in assessing the likelihood of confusion; the preliminary injunction is an unconstitutional prior restraint on MSCHF’s free expression; the district court erred in requiring MSCHF to place its Wavy Baby revenues in escrow; and the district court erred by failing to make a bond determination.

The main issues in this appeal are governed by the United States Supreme Court’s recent decision in Jack Daniel’s Properties, Inc. v. VIP Products LLC, 599 U.S. 140 (2023). Applying Jack Daniel’s, we conclude that Vans is likely to prevail in arguing that MSCHF’s Wavy Baby shoes used Vans’ marks and trade dress as source identifiers, and thus no special First Amendment protections apply to protect MSCHF against Vans’ trademark infringement claim. As such, the district court did not err in concluding that Vans is likely to prevail on the merits of its trademark infringement claim in light of the likelihood of confusion as to the source of the Wavy Baby shoes. We further conclude that the district court did not err in requiring MSCHF to escrow its revenues from Wavy Baby sales, and that the district court was not required to make a bond determination because MSCHF never requested security. We therefore AFFIRM.

Download Vans Inc. v. MSCHF Product Studio Inc.