A big trademark battle is afoot and once again it's about shoes. This time, though, it's at the opposite end of the price spectrum than the recent Christian Louboutin red-sole spat, which saw the French luxury-footwear maker seek (and lose, then win after an appeal) a degree of trademark protection over the use of its signature crimson soles. According to documents filed in a New York court in mid– October, Converse, Inc. is going toe to toe with more than 30 retailers and manufacturers, including Wal-Mart, Ralph Lauren, Fila, Tory Burch, H&M and Canada's own Aldo, for allegedly infringing on its iconic shoe styles, specifically its Chuck Taylor All Star sneakers.
Converse, which has been owned by Nike since 2003, contends "trademark infringement, false designation of origin, unfair competition, trademark dilution and unfair business practices" on design features it registered in 2013, such as a mid-sole stripe that truncates at a diamond-embossed rubber bumper at the toe.
The original All Star basketball shoe style – a basic athletic plimsoll canvas upper with a rubber sole – was created in 1917, Converse contends, noting that the Chuck Taylor name and ankle patch were added later, in 1934, after basketball star Charles H. Taylor became the brand's promoter and helped the shoe become a bestseller (the star patch bears a replica of his signature).
Although that patch is the explicit trademark expression, it is not what's in question in this case: Converse is alleging that its outsole elements are a source identifier when used in their distinctive configuration, so they should be considered a secondary trademark.
One of the standards for determining infringement, of course, is the likelihood of consumer confusion. Am I confused, apropos Converse, when I look at WalMart sneaker or at Aldo's contested "Sprenkle" style? The latter has neither the heel patch nor ankle patch associated with Converse. It's just a generic plimsoll shoe, the same basic item that Converse built its brand on in 1917, a style that then as now was manufactured by many others, including P.F. Flyers.
Arguably, it's a combination of the toebumper plimsoll style plus the trademark star patch and strip of words on the heel that – even at a distance – tell me that a sneaker is a Chuck Taylor All Star. Although Converse considers their versions knockoffs, the manufacturers being sued aren't directly invoking Converse (the term for that is counterfeiting, a problem that the company, like many other successful global brands, also has). In my view, a greater argument for infringement could be made against Tory Burch's "Ranell" plimsoll, which is trimmed in leather, lined with shearling and bears her brand's stylized T in a medallion on the tongue, a flourish that seems more evocative of Converse than any subtle mid-sole lines.
Such niceties suggest the big grey area when it comes to protecting marketing successes. In practice, many of us say Kleenex when we mean tissue or Starbucks when we mean coffee, despite the fact that those names are distinctive, protected brands. If anyone calls a WalMart sneaker a Converse, it's because the plimsoll with a toe cap, which Converse arguably perfected, has became synonymous with the firm. Converse estimates that it has sold a billion pairs of the sneakers worldwide, making it a victim (or so it's now alleging) of its own success.
In truth, though, we – the consumers – aren't confused; we're just too disinclined to make the distinctions.
Consequently, it seems ridiculous that Converse is trying to lay proprietary claim to a now-generic style in order to further restrict the way said product is interpreted by other companies. It is doing so, however, in part because it can't lay claim to plain athletic plimsolls and stop others from manufacturing them.
Those sorts of products or ideas are in the public domain, their design integrity effectively unprotectable. The only real protection that fashion brands can secure, in fact, are through laws around trademarks and logos. This has to be why so much product in the fashion world today is plastered with monograms, logotypes and other identifying features. In the absence of intellectual-property laws governing design, the incentive for a designer is to slap tacky brand dressing and show provenance on the outside has become great.
The Copyright Wars, a new book by Peter Baldwin, looks at whether copyright laws are today too strict; historically, American copyright legislation was supposed to serve the public good and encourage free expression. Looked at that way, I see no reason why Aldo should decorate its plimsoll sneakers with studs and grommets rather than stripes on the side of their soles. Elements like contrasting colour (Louboutin's red sole) or design details in combination (as in Converse's case) function more as "trade dress" and therefore creep into the domain of intellectual property. Mimicking them may be lazy and even unethical, but it shouldn't be illegal.