Céline is one of those brands that, season after season, charms spectators with timeless looks. Creative director, Phoebe Philo has mastered the art of sending collections down the runway that are simple, understated, even, but are so perfect in construction, material, color, and fit, that they can’t be ignored. The code that is Céline consists of looks that don’t intend to shock and that aren’t making a comment on something like, say, consumerism. The goal is simply to give you high-quality confidence in material form. This is true of the garments, the bags, and the accessories. But let’s just focus on the shoes. Take, for example, the simple slip-on sandal that we’ve known for years. Add a Philo touch (think: fur), and something sensational results. Or how about the brand’s high-end interpretation of the classic slip-on skate shoe? See the brand’s most recent example: the simple yet luxurious mid-top calfskin sneaker.
There might be an issue with these sneakers, though, as they bear a striking resemblance to Nike's Air Force 1. While most brands have riffed on Nike's classic AF1 silhouette, Complex points out that similarity here, saying: “French luxury brand Céline just revealed its collection for Fall 2014 and part of the line is a mid-top sneaker that looks very similar to the Nike Air Force 1 Mid silhouette. The unbranded calfskin sneakers come in 'Caramel' and 'Tan' and feature the same thick midsole, perforated toe box, and paneling as the AF1." But this may not just be a situation in which we ponder over the similarities without any hope for recourse (as is often the case in terms of design piracy), because Nike has taken steps to legally protect the AF1 design.
A natural first thought might be related to the fact that the Phoebe Philo-led brand is not using Nike’s trademarked Swoosh. And you’d be right to point that out. The Céline shoe is unbranded, and in many cases related to inspired-by-fashion, that’s really the end of the story. In Nike’s case, though, it has trade dress protection in the AF1 design. This means that the shoe does not need to have the Swoosh on it to be instantly recognizable as the AF1 shoe. Specifically, Nike’s trade dress protection extends to the “design of the stitching on the exterior of the shoe, the design of the material panels that form the exterior body of the shoe, the design of the wavy panel on top of the shoe that encompasses the eyelets for the shoe laces, the design of the vertical ridge pattern on the sides of the sole of the shoe, and the relative position of these elements to each other.”
A quick overview on trade dress law will help put all of this into perspective: Trade dress is a type of trademark law. It protects the overall look and feel of a product and it may include such things as size, shape, texture and color. To be granted trade dress protection, a product must be distinctive, either inherently or because of secondary meaning, and nonfunctional. Like with trademarks, likelihood of confusion is the test when determining if there is trade dress infringement.
The point of contention here, should there be a lawsuit, would most likely be whether or not there is a likelihood of consumer confusion. Because there is no Swoosh on Céline’s shoe, the argument can be made that a consumer would not be confused as to the source of the good – i.e. someone buying the shoe is not likely to think they are buying an Air Force 1. But, in light of the fact that there have been many Designer x Athletic Brand collaborations as of late, there may be a convincing case to be made that a consumer would be confused as to whether or not Nike approved or sponsored the French luxury house’s mid-top sneaker.
In deciding whether or not consumer confusion is likely in a trade dress case, courts typically consider the same factors as those in a traditional trademark infringement proceeding. These factors include: the strength of the mark; the proximity of the goods; the similarity of the marks; evidence of actual confusion; the similarity of marketing channels used; the degree of caution exercised by the typical purchaser; and the defendant's intent. While it’s hard to predict how a court will rule on these factors, it is worth noting that Nike probably has at least a few in its favor. First, Nike’s AF1 is a widely-know and strong mark. Next, because Nike has collaborated with well-known designers, it could be argued that the goods – both pairs of shoes – are related and that consumers will assume there is an association. What’s more, the marketing channels might be similar now that athletic footwear is taking up residence in more than just the athletic realm.
These factors will be considered against the fact, however, that an array of brands (think: Lanvin, Alejandro Ingelmo, Kris Van Assche, Balenciaga, etc.) have introduced shoes with a silhouette that resembles Nike's Air Force 1 design. As a result, chances are, Nike won't take issue with Céline’s shoe, even though the Oregon-based brand has been known to go to court to protect its designs. If a lawsuit is in the future, be sure to tune in, as both brands have the resources to make for an interesting battle.
JENNIFER WILLIAMS is a recent law school graduate who writes about fashion, the legal avenues available for protecting it, and the ways in which the laws are falling short. For more from Jennifer, follow her on Twitter.