THE FASHION LAW EXCLUSIVE - One of the fashion industry's favorite footwear brands, Aquazzura, has filed a trade dress infringement suit against Ivanka Trump and her licensee, Marc Fisher, for allegedly copying one of its best-selling and most “distinctive” shoe designs. According to Florence-based Aquazzura’s complaint, which was filed on Tuesday in the Southern District of New York, a federal court in Manhattan, Ivanka Trump and Marc Fisher are producing footwear that “mimics every key element of the trade dress of Aquazzura’s well-known and distinctive” shoes, in particular, a $145 "exact copy" of its own $700+ Wild Thing style.
Aquazzura, which was founded by Salvatore Ferragamo and Roberto Cavalli alum, Edgardo Osorio, in 2011, alleges that Trump and Fisher make specific and very blatant use of its well known Wild Thing trade dress. The trade dress at issue consists of "the overall appearance and particular combination of elements of the Wild Thing Shoe make it distinctive, those individual elements consisting of the overall shape of the shoe, including the angle and slope of the sole of the shoe, the stiletto heel combined with an open toe, the distinctive fringed vamp (the band covering the toe) and the ankle-wrap closure made of tasseled string." (Note: trade dress is a form of trademark protection that extends to the overall commercial image of a product that indicates or identifies the source of the product and distinguishes it from those of others. It may include the design or shape/configuration of a product.)
According to Aquazzura, this is no coincidence; the defendants, including Trump, who the complaint specifically targets as being "intimately involved" in the design process of her footwear collection, know exactly what they are doing: attempting to profit off of Aquazzura's in-demand shoe. The Italian brand alleges that the defendants' “use of [its] Wild Thing Trade Dress is intended to mislead consumers into believing that Defendants’ Infringing Shoe and Plaintiff’s Wild Thing Shoe are one and the same, or that [Trump's] Infringing Shoe is made, approved, sponsored or endorsed by Plaintiff, or that the two companies are somehow connected. Defendants’ Infringing Shoe is also created with the specific intent to create post-sale confusion as to the source of Defendants’ footwear, creating an imitation of Plaintiff’s Wild Thing Shoe that cannot be distinguished post-sale.”
The complaint does not stop there, though. Aquazzura goes on to further state: “Defendants’ flagrant copying of Plaintiff’s well-known Wild Thing Shoe design is likely to cause consumers to falsely believe that Defendants’ products come from or otherwise are associated with Plaintiff and to harm Plaintiff and the substantial goodwill it has developed in its proprietary Wild Thing Shoe design and trade dress [the key inquiry in a trademark/trade dress infringement matter]. Such consumer confusion and harm to Plaintiff will continue as long as Defendants persist in using infringing trade dress for their own goods. Moreover, upon information and belief, Defendants have engaged in said conduct in a bad faith attempt to improperly siphon away Plaintiff’s customers and potential customers.”
As a result, Aquazzura, which has set forth claims for trade dress infringement, unfair competition, and deceptive trade practices, is seeking both preliminary and permanent injunctive relief, an accounting of Defendants’ profits flowing from their use of infringing trade dress, damages, attorneys’ fees, and any “other relief as the Court deems just and proper.”
Matthew Burris, the chief financial officer for Marc Fisher, has responded to the filing, saying: "This is a baseless lawsuit aimed at generating publicity. The shoe in question is representative of a trending fashion style, is not subject to intellectual property law protection and there are similar styles made by several major brands."
Aquazzura’s lawsuit comes after its founder, Edgardo Osorio, took to the brand's Instagram account in March to call out Ivanka Trump for copying. The presidential candidate's spawn maintains a New York-based clothing and accessories collection, under which she released the shoe in question earlier this year.
More recently, after receiving a number of cease and desist letters in connection with one of Aquazzura’s other shoes, the Marilyn style, Fisher filed suit against Aquazzura in the Southern District of New York, asking the court to declare that Aquazzura does not possess legal rights in the shoe design at issue and therefore, lacks a legal basis to sue. While the Marilyn style shoe is briefly mentioned in the lawsuit at hand, it is not the subject of this litigation.
UPDATE (8/23/16): Trump and co. have filed their answer (the legal term for their response) to the lawsuit that Aquazzura filed against them. According to Trump’s legal team, the Ivanka Trump shoe style in question, called Hettie, doesn’t violate trade dress laws, create unfair competition or unfair trade practices.
In addition to filing their answer, Trump and Fisher also filed a counterclaim asking the court to rule that the Aquazzura shoes in question are, in fact, not subject to trademark protection. According to Trump’s team, the Wild Thing design “lacks secondary meaning and does not function as an indicator of source” and therefore, should not be protected by trademark law.
UPDATE (11/3/2016): Since filing suit in June, Aquazzura has expanded the breadth of its trade dress infringement suit against Trump, opting to add a design patent infringement claim to the lawsuit, as well. While Aquazzura does not hold design patent protection for its Wild Thing sandal, design patent protection does cover its Christy design, which should make for a relatively easy win in terms of Trump's Tropica style.
* The case is Aquazzura Italia SRL v. Trump et al, 1:16-CV-04782.