Last April, the subversive art collective MSCHF was sued by Vans’ for infringing upon its trademark for its classic Old Skool sneaker design with the satirical Wavy Baby shoe with peculiar undulating sole.
Last week, in the U.S. District Court of Eastern New York, the oft-sued MSCHF found itself a defendant again, this time for the unauthorized co-opting of a streetwear company named WaveyBaby.
Attorneys for the Massachusetts-based WaveyBaby allege in a 17-page, five-charge court filing that the Brooklyn-based satirical design house refused to settle over a cease-and-desist letter sent on April 12, 2022. Furthermore, the lawsuit asserts “on information and belief” that MSCHF has plans “for additional releases of the Wavy Baby shoe, including in different colorways.”
“We made MSCHF aware of this prior to their launching, but, you know, as we say in the complaint, they pressed forward, notwithstanding our objections,” WaveyBaby’s attorney Ezra Salami told Sourcing Journal. “We did have a dialogue, but it became readily apparent that at least at that juncture they were not interested in our position of changing the name and, obviously, they went forward with their launch.”
Salami told Sourcing Journal that information about MSCHF’s planned re-launch of additional Wavy Baby shoes came from a press release.
“We understand the case between them and Vans’ is still pending, but in the event that they somehow obtain a favorable result, it is our understanding based on the press release that there are additional designs of this particular shoe in their warehouse or their design notebooks, if you will,” Salami said.
One might argue the attention garnered by the launch of the Wavy Baby shoe that MSCHF did in collaboration with hip hop artist Tyga, could only have enhanced brand-awareness for Wavey Baby, which is backed by hip hop artists like Scrappy, Cam’Ron and Rubi Rose, but Salami contends the truth is quite to the contrary.
“Such negative publicity on the shoe has resulted in consumers confusing Defendants’ infringing brand for that of Plaintiff’s further believing Plaintiff is involved in ongoing litigation with Van’s [sic] Inc., when in fact they are not,” Salami wrote.
Salami told Sourcing Journal that his client can show economic damage as a result of the conflation with the Van’s lawsuit that will be revealed as part of discovery.
He also points out that MSCHF went so far as to place a trademark ® symbol on the Wavy Baby shoe name, even though it never bothered to so much as apply for a trademark with the U.S. Patent and Trademark Office. This absence of follow-through may have been part of the ironic commentary of the absurd nature of trademarks MSCHF was trying to convey in its release of the Wavy Baby shoe, but Salami sees the omission as ammunition in asking for triple the damages to be awarded due to MSCHF’s “knowing and intentional” violation.
Wavey Baby was begun in 2020 by Trevon Offley, a one-time football star from Brockton High School in Massachusetts who led Division III Framingham State (Mass.) University in rushing with 560 yards and six touchdowns, despite multiple injuries his senior year of 2016.
“[Offley] built the company to national notoriety through sheer grit and determination,” Salami wrote in the complaint.
Being sued for trademark infringement is nothing new for MSCHF. In addition to the Vans suit, in which it was ordered to stop making the shoes and then sued again a month later by Vans’ for failure to comply, the collective has been sued by Nike for its “Satan Shoes” [only after it wasn’t sued for its equally infringing “Jesus Shoes”], and in January of 2022 eagerly invited cease-and-desist letters from unwitting sponsors for releasing its “Cease and Desist Grand Prix”, a snarky Formula 1 spoof made to embarrass major corporate brands like Starbucks and Coca-Cola.
A homegrown streetwear startup like WaveyBaby was likely not meant to be in MSCHF’s caustic crosshairs, but a five-charge filing that includes federal trademark infringement, unfair competition and false designation of origin, New York State unfair trade practices, common law infringement and civil conspiracy under New York common law, are no laughing matter.
Salami told Sourcing Journal he doesn’t know whether MSCHF was surprised to learn there was already a brand called Wavey Baby, prior to last April.
“Maybe it’s from me practicing a number of years, but you’d be surprised how steadfast companies remain in their positions, even in the face of— from our perspective, and I think a lot of people’s perspective— a black and white issue,” he said.
MSCHF did not respond to Sourcing Journal’s request for comment. The company has 21 days from the March 31 filing date to respond to Wavey Baby’s suit.
Upon the November 2022 release of its Made in Italy handbags assembled in the small town of Italy, Texas, meant to poke fun at the artificial inflation of prices based solely on where they’re made, MSCHF artist Kevin Weisner told Sourcing Journal, it’s not MSCHF’s intent to get sued when it launches products.
“Hopefully not the nation of Italy. We could use one where we don’t get sued,” Weisner joked when asked who would be suing them for that product. “The unifying theme for MSCHF is a certain sense of humor wanting to exploit places where money or commercial culture start to get weird.”