Expression Behind ‘Wavy Baby’ Shoe Probed in Vans Trademark Case

A Second Circuit panel Wednesday sought to find the line between a work of art and a consumer product in a case involving claims that art collective MSCHF Product Studio Inc.'s “Wavy Baby” shoes infringe Vans Inc.'s trademarks for its popular “Old Skool” skate shoe.

“I appreciate that there are going to be hard cases,” said MSCHF’s attorney David H. Bernstein of Debevoise & Plimpton LLP told the panel during the oral argument. “There are going to be cases where courts are going to have to decide, ‘Does the expression predominate here? Or does the commercial nature predominate here?’”

But ...