Image: Sophia Webster

Shoemaker Sophia Webster called out rival Aquazzura on Instagram on Friday, claiming that the Edgardo Osorio-founded brand is on the hook for copying. “Hey Aquazzura, [direct message] me if you want some new ideas … original ones,” a post from Webster’s Instagram account read, alongside side-by-side images of Sophia Webster heels complete with toes adorned with speech bubbles that read “Boss” on the right shoe and “Lady” on the left, and a pair of Aquazzura loafers complete with metal lettering that reads Boss Lady.

British designer Sophia Webster is none too pleased with Aquazzura’s choice of  wording on its recently-released shoes, and certainly found some sympathy amongst her fans on the social media platform. However, others were less persuaded, noting that Webster was not the first to make use of the “Boss Lady” moniker and likely does not maintain trademark rights in the term. And they are right.

It turns out, the budding feud over “Boss Lady” is the latest in a long line of social media-centric claims of copying that would probably not stand up in a court of law. This is true for a few reasons. Firstly, since the shoes at issue maintain little – if any resemblance – aside from the use of the “Boss Lady” term, the only real course of action for Webster would have to be trademark infringement. (Note: Webster cannot claim design patent infringement because she does not have a design patent registration).

The problem with a potential trademark infringement claim is twofold. For one thing, neither Webster nor Aquazzura are using the “Boss Lady” term in a trademark capacity. In other words, they are not using it identify and distinguish the source of their products from others’ products in the same way as say, Chanel’s name does or Nike’s swoosh logo does. They are more realistically using the term as a decorative element on a few styles of their respective shoes.

In terms of Webster’s shoes, this point is further demonstrated by the fact that different styles have different words in the speech bubbles. A pair of boots, for instance, reads, “Bossy” on the right boot, and “Boots” on the left. A pair worn by Beyonce say, “Queen” on the left heel and “Bee” on the right.

So, chances are, Webster does not maintain trademark rights in the “Boss Lady” term.

The second problem: not only does Webster probably not maintain trademark rights in the “Boss Lady” trademark, someone else does. Boss Lady Entertainment, Inc., the company founded by Shante Broadus, has maintained a federal trademark registration for “Boss Lady” for several years. While Broadus, the longtime wife of rapper Snoop Dogg, only has federal rights in the “Boss Lady” name in connection with “activewear, namely, t-shirts, sweatshirts, hooded tops,” she could likely argue that the use of the mark on shoes, a similar – and often related – category of goods, could give rise to consumer confusion, and thus, trademark infringement.

(But then again, both Webster and Aquazzura could claim that they should be shielded from trademark infringement liability because they are not using the “Boss Lady” term in a trademark capacity).

The moral of the story here: could Aquazzura, which famously sued Ivanka Trump, as well as Marc Fisher for replicating several styles of its trade dress and design patent-protected footwear, be a bit more original (assuming the brand did, in fact, get its inspiration from Webster)? Yes. But at the same time, not everything that looks alike is an actionable copy.