Can Vans really sue Target for a cheap look-alike of its most famous skater shoe?

The lawsuit accuses Target of trying to borrow the brand’s street cred.

Target’s Gen Z-focused, ’90s-inspired Wild Fable brand launched this fall, offering Instagram-friendly mix-and-match separates in an inclusive size range. All pieces were priced at under $40, and they were introduced to shoppers with a video starring a real, semi-famous New York skateboarding crew.

Now the 15-second clip is one of the exhibits in Vans’ lawsuit against Target and the designers it contracted to help create Wild Fable. The subject of the lawsuit is Wild Fable’s Camella Lace-Up Sneaker, which is featured in the video and is currently available for sale in stores.

The suit filed last Friday alleges that Target intentionally copied Vans’ Old Skool skater shoe, which launched in 1977 and features a signature white squiggle that Vans trademarked in 1998. “Few shoes have remained as consistently popular or are as instantly recognizable as the Old Skool Shoe,” the filing states.

The Wild Fable video is cited as evidence that Target is “willfully” confusing consumers by situating its sneaker in cultural contexts strongly associated with Vans, a California-based brand that unarguably owes its existence to the rise of skateboard culture in the state in the ’70s and ’80s. Vans’ lawyers write that the brand has “a long history of, and sterling reputation for, being authentic and connected to pop-culture, street culture, and youth culture,” and that Target is deliberating borrowing that reputation to confuse young shoppers and bolster the sales of its new line.

The filing also makes note of promotional photos for Wild Fable in which models wear the sneakers and hold bags with a black and white checkerboard pattern — another of Vans’ most well-known designs. In addition, the Wild Fable shoes come up in the Target site’s search results if you search for “women’s Vans shoes.”

So, the shoes are clearly similar, and the evidence seems compelling, but does Vans really have a case against Target? As is probably clear to you any time you walk into a Forever 21 or H&M or Zara — places where the entire business model relies on rapidly mimicking popular designs and selling them at an extreme discount — copyright protections for fashion are feeble at best. The US still regards fashion as a major manufacturing industry undergirding the national economy, as opposed to a creative industry. In other words, it’s not in the government’s best interest to punish copycats, and it typically doesn’t. But that hasn’t stopped brands and designers from trying to protect their work through the courts.

Vans’ case relies on pretty thin trademark protections for fashion

There’s plenty of precedent for trademark infringement lawsuits in fashion. There’s less of a precedent for wins, and even less for this specific type of battle between two enormous, established brands over the jackpot that is modern sneaker culture.

Vans’ claim to skater culture is probably the least persuasive argument in the suit, though it’s not completely without merit.

“Vans doesn’t own the culture and ethos that is skateboarding,” fashion lawyer and NYU Law professor Douglas Hand told Vox. “That line is blurry. However, as far as brands that have legitimately come up with a sport or way of life, Vans can lay claim to that. It’s just another indicator that Target’s intention here was confusing people.”

More important here is the issue of “trade dress,” which Hand calls “the thrust of the case.” As Chavie Lieber explained for Vox earlier this year, trade dress is “a kind of trademark in which a design is deemed so recognizable that the average consumer associates it with the brand; brands can register their designs as a trade dress with the United States Patent and Trademark Office, though this is a difficult and expensive process.”

Trade dress is the most challenging type of trademark to secure in fashion, and the trickiest to defend. For the most part, fashion copyright laws are set up to protect more tangible things — proprietary fabrics and other technical components, brand names, and logos — which can be patented or easily trademarked.

In this case, Hand says, the test of whether trade dress has been violated is whether consumers are confused about the maker of Target’s product.

Vans

“What Vans has that’s pretty compelling are comments from actual consumers who have bought the Target product and are referencing it as ‘fake Vans,’” Hand explains. “That right there is indicia of confusion.”

These comments are referenced in the lawsuit, and Vans ties the confusion to the white stripe on the side of Target’s sneaker. Wild Fable’s stripe is different in shape from Vans’ “jazz stripe,” which the sneaker company refers to as a “highly distinctive design element” and “unmistakable hallmark of the Vans brand.” However, the Wild Fable stripe’s placement and contrast with the black canvas of the shoe is also part of the trade dress trademark, the suit argues. Part of what distinguishes Vans — a shoe made famous by blurry videos of kids doing semi-illegal things in the street — is that they are “immediately recognizable to consumers even at far-off distances.”

What’s at stake for Vans, for Target, and for brands generally?

Vans has been litigious for some time, and it’s obviously in its best interest to protect its claim on a social media-entrenched subculture that it’s spent decades courting.

The company sued Skechers in 2008 over an imitation of its signature checkerboard slip-on sneaker, and the latter eventually copped to “borrowing” the idea and settled the case out of court. (Skechers has also settled several lawsuits with Adidas and one with Crocs.) Vans is currently also suing Irish fast fashion company Primark in New York federal court for selling allegedly Old Skool-inspired sneakers.

It’s notable that the Target lawsuit dwells primarily on the “jazz stripe” trademark, only briefly mentioning the other obvious similarities between the two shoes, like their shape, color scheme, and waffled bottoms.

That could be because Vans’ lawyers were paying attention when Nike-owned Converse tried to sue 31 different retailers over its famous high-top Chuck Taylor sneaker. The International Trade Commission initially ruled in Converse’s favor but overturned its own decision in 2014, saying that several of the relevant trademarks were too general and therefore invalid, and that only the diamond pattern on the bottom of the shoe could justifiably be considered proprietary to Converse.

Vans is concerned that Target has made a $15 version of a $60 shoe, meaning the materials are “cheaper and inferior” and that confused shoppers will think they’re buying crummy Vans that aren’t up to the company’s standards. The suit asks that Target turn over its profits from the shoes, stop making them, reimburse Vans for attorney fees, and pay punitive damages.

For its part, Wild Fable — and its ability to reimagine iconic ’90s styles for modern discount shoppers — is pretty key to Target’s current strategy. The company hired former Nordstrom president Mark Tritton in June 2016 expressly to launch and grow new private labels like Wild Fabel, denim brand Universal Thread, business-casual line Prologue, and the billion-dollar women’s basics brand A New Day. Since Tritton started, Target has launched 20 new private label brands across home goods, electronics, and clothing, mimicking a strategy codified by Amazon over the course of the last decade.

Vans

Though this one sneaker is probably not a big deal to a $30 billion company that sells tens of thousands of products, these in-house brands are supposed to be the blueprint for Target’s future. A loss here would also not bode well for Target’s brand collaborations, which have long been core to its fashion business.

If Vans gets what it wants, Hand argues, there’s one element of the case that’s particularly notable. The suit argues that Target’s established history of brand collaborations — with designers high, low, and mid-tier — has conditioned shoppers not to be surprised by the presence of recognizable brands in its stores. The “fake” Vans might not be recognized as fake, because the Missoni knits weren’t fake, the Toms holiday collection wasn’t fake, and the Lilly Pulitzer bathing suits and flip-flops weren’t fake. (Though the Burberry scarves were!)

“That very proclivity may further confuse consumers into thinking that this product is actually a Vans product,” Hand says. “If that is an argument that holds sway, that could be chilling for brand collaborations in the future.”

Given our internet-age obsession with collaborations, this would be a huge problem for a lot of big-box retailers that increasingly rely on the mildest associations with anything cool. Still, it doesn’t seem likely it would have an effect on brand collaborations more generally, and so 2019 will not bring an end to things like $375 Kentucky Fried Chicken racing jackets.