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The legal battle launched by Vans over Tyga’s Wavy Baby sneakers is headed toward a quick showdown, after a federal appeals court granted a fast-track appeal to the Brooklyn studio that created the shoes.
The U.S. Court of Appeals for the Second Circuit said Wednesday that it would hear a special expedited appeal from MSCHF, allowing the company to quickly challenge a ruling last month that the sneakers it created with Tyga should be banned because they look too much like a pair of Vans Old Skools.
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The appeals court didn’t offer a rationale for speeding up the appeal, but MSCHF had argued that case was “time-sensitive” because the Wavy Baby ban was a so-called prior restraint — a government restriction on free speech that is almost always a violation of the First Amendment.
“MSCHF is grateful that the Second Circuit granted its motion to expedite this appeal, which raises critical questions of the intersection of the First Amendment and trademark law,” said the company’s lawyer, David Bernstein. “Given that MSCHF plans to display Wavy Baby at the Perrotin Gallery and at Art Basel this fall, it was essential that the appeal be expedited so that the Second Circuit can protect MSCHF’s First Amendment rights.”
Under the schedule laid down by the Second Circuit on Wednesday, the case will be fully briefed by mid-August, with a ruling some time after that.
Ahead of Wednesday’s order, Vans had strongly opposed fast-tracking the appeal. It said MSCHF had “manufactured” an emergency and that the company had never previously claimed it was going to display Tyga’s sneaker in looming art exhibits. A spokesperson for Vans did not immediately return a request for comment on Thursday.
Tyga announced the Wavy Baby in an April 6 post on Instagram, 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 bolder: “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 calling MSCHF’s sneakers “blatant trademark infringement” and demanding an immediate restraining order. MSCHF argued back that the Wavy Baby – a surreal, warped version of the Old Skool – was an art project, designed to critique the “consumerism inherent in sneakerhead culture.”
But on April 29, 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 that Wavy Baby was far more like a competing shoe brand than some kind of art installation.
“Despite defendant’s assertions the Wavy Baby shoes belong in museums and galleries for exhibition, the production of 4,306 pairs of shoes places the Wavy Baby shoes on a mobile footing vastly different from one found at the Brooklyn Museum,” the judge wrote.