Rothy’s is suing yet another footwear rival for selling flats it alleges infringe on its patents.
The direct-to-consumer Bay Area brand filed its latest lawsuit in April against the women’s footwear maker and fellow San Francisco native Birdies. The litigation—on the heels of similar suits against Steve Madden, OESH Shoes and Giesswein—seeks $2 million in damages.
In its April 5 complaint, Rothy’s alleged Birdies “intended to and did copy” four patents when designing The Blackbird, a flat it debuted in an engineered knit in February. Citing contemporaneous social media posts, it claimed consumers “immediately associated” the shoe and its knitted design with Rothy’s flats. Rothy’s dubbed Birdies’ alleged infringement as “willful, deliberate, malicious and in bad faith,” and also lamented its failure to “to emulate Rothy’s commitment to environmental sustainability” while allegedly knocking off its rival’s products.
Birdies filed its response Monday. Though the brand acknowledged that the images of The Blackbird shoe cited in Rothy’s filing appear to be a copy of its patented designs, Birdies denied the allegation of infringement and further asserted the patents to be invalid.
Though Rothy’s had claimed February’s Blackbird shoe to be different from a prior Blackbird silhouette—it cited two different fit recommendations—Birdies insisted it was the same loafer it has offered since 2015, years before Rothy’s filed its patents in 2017 and 2019. As such, Birdies added, its 2015 Blackbird loafer should invalidate the patents Rothy’s claimed it infringed upon. In its counterclaim, it declared a judicial declaration “necessary and appropriate” to determine whether Rothy’s patent is valid.
Birdies also denied a claim made by Rothy’s that an officer or director paid for numerous pairs of Rothy’s footwear to be shipped to Birdies’ corporate address “for the purpose of copying.”
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Both Rothy’s and Birdies have demanded a jury trial.
Rothy’s has emerged victorious in past intellectual property legal battles. Last year, the High Court of Justice’s Business and Property Courts of England and Wales ruled in its favor in a lawsuit it filed against the Austrian shoe brand Giesswein over its “Pointy Flat” shoe. In August 2018, it sued the Charlottesville, Va.-based OESH Shoes. A little more than a year later, the two came to a confidential settlement agreement whereby OESH acknowledged the validity of Rothy’s patents and agreed to redesign the accused shoe.
Editor’s note: A court error originally stated the damages sought as $2 billion.