Imitation is the fondest form of flattery,right? So famed shoe designer Derek Lam should have been pleased that the Ivanka released a shoe that – well let’s just say it flatters Derek Lam a great deal. (picture of the two shoes is below). Lam has not sued yet, just fired off a cease and desist letter, according to Women’s Wear Daily who reported the story today.
This August I talked about a case involving the famous red-soled shoes of Christian Louboutin (who knew law would make me such a shoe expert?) where a court ruled that his distinctive red soles could not be protected as the red soled shoe existed before Louboutin and the designer himself testified that he chose red not just as a trademark but to convey “energy” and “passion.” That case and the others I have reported on on this blog show the difficulty in protecting a design. Trump’s lawyers are researching shoe history right now (or at least they ought to be) to try and establish that this “design” is really derivative of many other similar shoe designs from year’s past. It is very difficult to get protection over functional items like dresses and shoes for that very reason. Everything old is new again, so if you copied, how can you complain someone else copied?
The other problem Lam will have is his shoe (at $750 compared to Ivanka’s $150 pair price) is not that known a trademark in the community at large. His legal team would try to establish that in his market, among his clientele, this design is synonymous with him and well-known. That is, that it has become one of his “trademarks” so that his customers might think he designed the shoe for Ivanka or that Ivanka’s shoes come from his company.
Without knowing all the facts, it is not clear how this will pan out, but I feel that despite the great similarity between the two products, that Lam will have a hard time stopping Ivanka from selling the similar shoe should she want to. Generally, designers want to be known for their own creativity, not for producing something that builds off of someone else’s creativity. But that’s not a legal issue, that’s a marketing issue. The shoes at question: