Three Point Shot

Mischief Afoot: Vans Kicks MSCHF's Main Defense to Trademark Infringement to the Curb in Art Sneaker Dispute

If the shoe fits, wear it. Or so the Second Circuit mused in a recent decision, in which it "re-boxed" an art collective's appeal challenging a preliminary injunction that barred further sales of a limited-edition art sneaker. In its decision, the appeals court relied on the recent Supreme Court Jack Daniel's trademark decision that found works cannot qualify for increased First Amendment protection as "expressive works" for purposes of the Rogers test when they make unauthorized use of others' trademarks for source identification purposes. (Vans, Inc. v. MSCHF Product Studio, Inc., 88 F.4th 125 (2d Cir. 2023)).