Last Monday, December 15, 2009, perhaps inspired by Alexander McQueen's recent suit against Steve Madden for similar copying, Balenciaga filed suit against Steve Madden for Copyright Infringement, False Designation of Origin, Unfair Competition and Deceptive Business Practices in New York federal court.
Interestingly, the complaint barely mentions Trade Dress, and does not include it as a cause of action, maybe because secondary meaning is so difficult to prove.
Or maybe Balenciaga's complaint is just poorly drafted. In the copyright infringement claim, Balenciaga fails to allege that it holds a federal copyright registration, a prerequisite for bringing a copyright action in federal court. In the Deceptive Trade Practices claim, the company alleges that Madden is "in direct competition with Balenciaga," which at the prices listed above, seems very hard to believe.
Under existing US laws, it is permissible to copy shoes and clothing because those items are useful articles. But, I think Balenciaga has a leg to stand on. Here's why:
Balenciaga argues that Steve Madden is engaged in a pattern of willful and deliberate copying, constantly stealing the most successful styles from other shoe designers, thus profiting from their research, development, and successful track record.
By not having to spend money for design and development, and focusing only best-sellers of others, Steve Madden skips the risky part of the fashion business.
So, Balenciaga just might have colorable argument that Steve Madden is engaged in unfair competition by copying its colorful shoes.
Photo credit: City File
p.s. While I like crazy shoes, thank goodness these Legos are not under our tree.