Primark has added a new name to the long list of copycat footwear it is offering up on the cheap. Alongside copycat versions of Alexander McQueen’s Oversize sneakers, Balenciaga’s Triple S, Converse’s Chuck Taylor trainers and Vans’ Old Skool sneakers (the latter of which have led to a lawsuit), the Irish fast fashion chain has a new sneaker that, according to a growing number of social media users, looks a whole lot like Veja’s popular V10 sneaker.
In response to Primark’s introduction of what he is calling “counterfeit” shoes, Paris-based Veja’s co-founder Sébastien Kopp alluded to impending legal action, stating, “We will explain everything to [Primark] in court.” With such a threat of litigation in mind, the question becomes whether the sustainability-minded Veja brand has a case against the fast fashion giant.
If Veja were to follow in the footsteps of Vans, which filed suit against Primark in December, it would allege that the mass-market fashion company jacked elements of its legally-protected trade dress – i.e., the characteristics of the visual appearance of a product that signify the source of the product to consumers – to create a shoe that consumers will recognize as a Veja knock-off.
In making such a trade dress infringement argument 15-year old Veja – which has found fans in Meghan Markle, Reese Witherspoon, Emily Ratajkowski, and no small number of fashion industry influencers, among others – would have to show that there is a combination of elements that consumers have come to associate with its V10 sneaker and that by using those elements, Primark has created a sneaker that is not only similar in appearance but more importantly, one that would confuse consumers in terms of its source. In other words, consumers might think that Veja had something to do with the sneaker being sold at Primark.
For Veja, that trade dress would almost certainly consist of the prominent “V” that appears in the upper area of the shoe; a rubberized sole, which includes a rhomboid shape detail towards the rear the outer side; a contrasting color heel tab, which bears the word “Veja”; a protruding tongue; a double-stitch outlined heel; and a perforated vamp; among other elements.
Primark would almost certainly respond to allegations of trade dress infringement by pointing out the differences between its shoes and the Veja trade dress, including, most significantly, that its sneakers do not include a “V” design on the side but instead, a horizontal wave-like symbol. Beyond that, it would also undoubtedly assert that the sole of its sneaker is different (it lacks the rhomboid shape design, for one thing), as is the shape of its heel cap, which very importantly, does not include any text, especially not the “Veja” trademark.
Primark’s goal here would be to show that there are enough visible differences that its shoes are not “confusingly similar” to Veja’s, and thus, do not give rise to a merited claim of trade dress infringement.
Nonetheless, is Primark’s intent here clear? Almost certainly. The company, which is in the business of taking existing designs and offering them up for less, is looking to sell a sneaker that looks just enough like the Veja one to attract bargain-hunting consumers.
However, even if Primark’s sneaker does, in fact, make consumers think of Veja and its offerings, are consumers likely to be confused into believing that Veja is in some way officially connected with or has authorized Primark’s low-cost, lookalike sneaker? There is an argument to be made that they will not, given an array of additional differences between the two companies’ shoes, including, but not limited to, the prices (Veja’s sneaker sells for $150, whereas Primark’s is being offered for roughly $21) and the general lack of any Veja branding on the Primark sneakers.
Such a potential lack of confusion amongst consumers does not bode well for the success of a Veja-initiated trade dress case, since consumer confusion is the central inquiry in such a matter.