Zara is not the only fast fashion brand copying Céline. Los Angeles-based e-commerce site, Nasty Gal, is taking on the Paris-based design house by way of the Jeffrey Campbell Overdome Ball Heel that it is stocking. Campbell’s rather obvious “inspiration” is the 70mm Midnight Navy Calfskin Sphere Heel Slingback Bootie from Céline’s Spring/Summer 2014 collection (pictured below, right).

While the bodies of the shoes are nearly identical and the inside soles are coincidentally(?) both shades of blue, Campbell got “creative” and changed up the heel a tiny, tiny bit. Instead of produces a line-for-line copy, Campbell opted to feature a wooden ball heel (an ode to the wooden rectangle heels that Céline also showed for S/S 2014) because they wouldn’t want to deviate from the original design too much.

Please feel free to insert arguments about how Nasty Gal is just a retailer and that the Nasty Gal team was not aware that they were stocking a copy. Also, be sure to ponder whatever arguments Jeffrey Campbell could possibly make, as well.

Now, you can completely disregard those arguments because the Céline shoes were some of the most (actually, they were probably THE most) talked about of the entire season. There were noticeably few reviews that did not make mention of the eye-catching footwear. NowFashion referred to them as the “all-important Celine shoes”. The Telegraph dissected the shoes in its review, likening the heels to “stress balls”. Creative director Phoebe Philo’s creation made every single “Top 10 Shoes at Paris Fashion Week” list. Almost all of big-name fashion bloggers have talked about them (aka endorsed them). Pinterest boards have been dedicated to them. Essentially, unless you are not in fashion AT ALL or you live under a rock, you know about them.

So, now that we have Nasty Gal and Jeffrey Campbell’s go-to arguments out of the way, what can Céline do about this? My first instinct was to see if the Paris-based design house had filed a design patent application for the shoe, as it has done in the past in connection with several accessories. Turns out, the house has not filed to protect the design via design patent or trade dress applications. Copyright law likely isn’t the most suitable form of protection here because the article at issue, the shoe, is utilitarian in nature and thus, unprotectable as a whole. I won’t get into the separability requirement that, if met, would allow for protection, as it wouldn’t provide much protection, if it provided any at all.

Céline is not completely out of luck, though, if its legal team wants to slap Jeffrey Campbell with a lawsuit. The Paris-based design house has not federally registered the trade dress associated that extends the ball heel (aka the elements that make up the appearance of the shoe as a whole) with the U.S. Patent and Trademark Office. However, the Ninth Circuit Court of Appeals (the circuit court that governs California, where Jeffrey Campbell is based), has held that such registration (or lack thereof, actually) is not a deal breaker.

In fact, in Globefill v. Elements Spirits, Globefill hit Elements with a trade dress infringement case stemming from Elements’ use of a skull-shaped bottle for packaging tequila, similar to the one Globefill used to package vodka. The court defined trade dress as “the total image, design, and appearance of a product and may include features such as size, shape, color, color combinations, texture or graphics.” The court held that the elements that make up Globefill’s skull bottle  “are part of the ‘total image, design, and appearance’ of the product and therefore may constitute protectable trade dress.” In order to qualify for trade dress protection, the trade dress at issue must be non-function. The court established the following test to determine whether a product feature is functional:

(1) Whether the design yields a utilitarian advantage, (2) whether alternative designs are available, (3) whether advertising touts the utilitarian advantages of the design, (4) and whether the particular design results from a comparatively simple or inexpensive method of manufacture.

In the Globefill case, the court held that the skull-shaped bottle was non-functional. Specifically, the court stated that Globefill’s skull-shaped bottle is a “purely ornamental” [or purely aesthetic in nature] container for its vodka, and that because ornamental aesthetic designs are the antithesis of utilitarian designs, trade dress cannot be both functional and purely aesthetic. Additional reasoning of the court that is noteworthy includes: “The skull design is ornamental and serves no utilitarian purpose; alternative bottle designs are available in abundance; and using the design increases, rather than decreases, Globefill’s manufacturing and shipping costs.”

The court’s application of the four factors provides us with the grounds to look to the potential protection available for the Céline shoes. There is an argument that the “total image, design, and appearance” of Céline’s 70mm Midnight Navy Calfskin Sphere Heel Slingback Bootie amounts to a trade dress, much in the same way that Alexander McQueen held that the overall appearance of its Faithful bootie consisted trade dress in its lawsuit against Steven Madden and that Balenciaga alleged in regard to its Lego shoe in its own suit against Madden. In regards to the 70mm shoe, the ball heel is certainly ornamental or solely for an aesthetic purpose (otherwise Phoebe Philo could have replaced the ball with a normal heel); alternative shoe/heel designs are available in abundance; and using the design certainly increases, rather than decreases, Céline’s manufacturing costs, and also likely increases its shipping costs in terms of the tariffs and duties that must be paid in accordance with the specialty shoes.

As a result, it seems that Céline could very likely hit Jeffrey Campbell with a trade dress infringement lawsuit, and maybe even Nasty Gal with contributory liability claims.