Walmart is moving full steam ahead in its legal war with Kanye West and his popular Yeezy brand.
The ongoing spat began in April, when the mega retailer formally objected to a Yeezy trademark application. The proposed sunburst logo, it argued, too closely resembled its own, and as such was “likely to cause confusion and lead to consumer deception.”
Two months later, the 22-time Grammy winner hit back with an “unfair competition” lawsuit. Walmart, the suit alleged, was selling a “cheap knock-off” of the popular Yeezy Foam Runner clog. Since originally debuting for $75, Yeezy’s Foam Runners have sold for hundreds on resale sites like StockX and GOAT Group-owned Flight Club. Daeful, the third-party seller behind the alleged knockoff, listed its shoes for $23.99.
Though the offending footwear has since been removed from Walmart’s site—judging from the pictures included in West’s filing, they were virtually identical to Yeezy’s distinctive Foam Runners—the legal battles continue.
Late last month, Walmart filed a notice of demurrer—a legal move that alerts the “Donda” hitmaker that it will challenge the basic legitimacy of his complaint “on the grounds that it is fatally uncertain.”
“It is utterly unclear as to what conduct of defendant’s allegedly constitutes an unfair business practice,” Walmart’s lawyers wrote. “The complaint obscures all facts regarding the nature of the seller, fails to allege that defendant participated in the creation or development of the product listings at issue, declines to identify a single representation made about the shoes by anybody and fails to allege any facts related to defendant’s relationship with or control of third-party sellers on its platform.”
A memo submitted alongside the demurrer notice lays out in more depth the range of ways in which Walmart plans to argue West failed to properly present its claims. Many of these lines of attack are largely technical, such as one that contends West’s pleading is lacking because it alleges Walmart violated the Lanham Act and California’s False Advertising Laws, but does not name any particular provision. Others, however, contain far more consequential arguments.
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Citing Section 230 of the Communications Decency Act, Walmart argued it is “immune” against claims—including unfair competition claims—arising from products offered by third-party sellers. The controversial doctrine, a target of both Democrats and Republicans, preempts civil law claims that would hold an “interactive computer service” liable “as the publisher or speaker of any information provided by another information content provider.”
Though Walmart’s memo points to multiple court cases that have supported Section 230’s application to online marketplaces, it is not exactly clear how well that argument will hold up today. Just last year, the California Court of Appeals—West filed his lawsuit in a California court—ruled that Amazon was legally liable for damages caused by products sold by third-party sellers on its site. The case involved a California woman, Angela Bolger, who bought a defective laptop battery from an Amazon seller. The item caught fire and left her with third-degree burns.
“Under established principles of strict liability, Amazon should be held liable if a product sold through its website turns out to be defective,” the court said.
Section 230 could face a broader potential challenge in Washington, where politicians have grown discontent with how it shields social media networks. Though it was most famously maligned by Donald Trump—the former president vetoed a $740 billion military spending bill for not including a provision that would repeal the statute—Section 230 has faced criticism from Democrats as well.
As presidential candidate, Joe Biden voiced support for revoking Section 230. As president, however, he has taken a softer stance. In July, White House communications director Kate Bedingfield revealed that the White House was actively reviewing whether social media platforms should be held accountable for misinformation via Section 230, according to CNN. How this would affect online marketplaces remains unclear.