Vans wants MSCHF held in contempt of court for continuing to fulfill orders of its Old Skool-inspired Wavy Baby sneakers.
The VF label originally filed a complaint against the Brooklyn-based provocateur last month, days before the allegedly infringing shoes—a collaboration with the rapper Tyga—released to the public. Two weeks later, on April 29, the judge overseeing the case granted Vans’ request for a temporary restraining order and a preliminary injunction against MSCHF.
The injunction prohibited the firm and “all other persons who are in active concert or participation with [it]” from fulfilling orders of the Wavy Baby shoes. The order additionally prohibited MSCHF, its distributors and its affiliates from advertising, marketing, promoting, offering to sell, selling, distributing and taking orders for the product.
The judge’s order also required that MSCHF reverse and/or cancel any orders that had been placed as of the injunction. For those orders that could not be reversed or canceled, it required MSCHF set aside funds so that—should Vans succeed—it could refund customers who ordered the shoes “under the mistaken belief” Vans approved or sponsored them.
On Thursday, Vans submitted a letter asking that MSCHF be held in contempt of court for violating the April 29 temporary restraining order and preliminary injunction. It alleged that MSCHF had continued to fulfill orders for and ship the Wavy Baby sneakers. “Therefore an order of contempt and the imposition of sanctions is necessary to immediately ensure that MSCHF conforms its conduct to the Court’s unambiguous instructions,” Vans’ lawyers wrote.
Vans’ letter cites three instances where a customer—including one Vans employee—received notifications that MSCHF was continuing to ship the allegedly infringing shoes after April 29. In each case, the skate brand cites a shipment notification sent May 11 stating that the shoes had been picked up by the carrier from a warehouse in Guangzhou, China.
These notifications, Vans argued, mean that the shoes were in MSCHF’s custody and control after the injunction, but were shipped anyway.
“MSCHF’s lack of diligence is obvious from the timing of its conduct,” it added. “The shipments were not irreversible orders picked up shortly after the Injunction [was] issued; they were made almost two weeks after the Court’s unambiguous order that no such shipments be made. During this period, MSCHF had sufficient time to inform its affiliates and partners of the Injunction and to reverse or cancel unfulfilled orders. Yet MSCHF simply failed to do so.”
Vans asked the court to issue a “coercive fine” to ensure MSCHF’s future compliance. It also asked that MSCHF be compelled to pay the attorneys’ fees related to Vans’ motion requesting it be held in contempt.
The company asked that the court issue an expedited briefing schedule for its proposed motion for contempt. It suggested that its opening memorandum of law be due Friday, May 13, MSCHF’s response due Tuesday and its own reply due Wednesday. The judge’s response, sent on Thursday, sets out a longer schedule, however, with MSCHF’s response due Friday and Vans’ reply due May 27.
First teased in late February in the music video for Tyga and Doja Cat’s song “Freaky Deaky,” MSCHF’s Wavy Baby released to the public on April 18. The shoe, which resembles a distorted take on Vans’ classic Old Skool sneaker, quickly sold out all 4,306 pairs that MSCHF made available to the public.
In a Complex podcast last month, MSCHF chief creative officer Lukas Bentel acknowledged that the “base of the shoe before our transformation is of course a Vans, and I think there’s no doubting that.” He defended the decision saying that it was “a really unique transformation Vans would not have done.” Vans cited the podcast during a hearing on April 27.
In its complaint, Vans argued MSCHF and Tyga “shamelessly marketed” the warped sneaker in a direct attempt to confuse consumers, “siphon sales” and damage Vans’ intellectual property rights. Despite the shoe’s distinctive shape, Vans still contended that it “blatantly and unmistakably” incorporates its trademarks and trade dress.
MSCHF’s legal battle with Vans mirrors a similar fight with Nike over its so-called Satan Shoes. The repurposed Nike Air Max 97s, a collaboration with rapper Lil Nas X, only lasted two weeks last year before MSCHF settled and agreed to refund any customers who wanted to return their shoes. Buyers who preferred to hang onto their now notorious and ultra-rare kicks were reminded to reach out to MSCHF if they ran into a “product issue, defect, or health concern.”
MSCHF, which dabbles in a broad range of products, stayed away from footwear for nearly a year following its run-in with Nike. In March, however, it returned to the space in a major way with the launch of MSCHF Sneakers, a side endeavor that will release a shoe roughly once a month. The first shoe, a tape-covered sneaker dubbed the Tap3, riffed on Nike’s popular Air Force 1. The Wavy Baby marked the second release—fourth, if you include MSCHF’s 2019 Jesus Shoes and last year’s Satan Shoes.
Though Nike targeted both the Jesus Shoes and Satan Shoes, both products remain visible on mschfsneakers.com—albeit, with the word “Censored” covering all Nike trademarks. The Wavy Baby shoe, however, appears to have been scrubbed from the site.