Verrrry interesting
Posted by Jessica Stone Levy at 11/26/2007 2:58 PM and is filed under Francophilia/-phonia,Fashion,Trademarks 
Mike Atkins over at Seattle Trademark Lawyer blogged last week about the Southern District of California's denial of summary judgment in a case involving the Vans checkerboard pattern for footwear. I disagree with the court's denial of summary judgment and with the analysis, but I'm not sure I can articulate a theory under trademark law for why the checkerboard pattern shouldn't be able to function as a trademark. Rather, I see the whole claim of right in the pattern as oozing dangerously into the copyright area — where under copyright law, there's no question that the checkerboard pattern isn't subject to copyright protection. Here, what it seems like the court is concluding by means of the survey evidence, is that the mere idea of a particular type of shoe emblazoned with a checkerboard motif is capable of serving as a trademark, particularly because consumers are able to identify the pattern as coming from Vans shoes. Still, it seems unfair that one shoe company should be able to prevent all others from using a checkerboard pattern in a functional fashion. I think an appellate decision would bring us back to the exciting topic of aesthetic functionality, though the Ninth Circuit isn't too friendly to that defense. (Hint for a DJ plaintiff in a case like this — try to get in the Second Circuit instead, where the big case on the topic always reminds me of my silver pattern.)
But my biggest problem here is this:
I bought these Creeks deck shoes no later than the end of May, 1982, at the Creeks store on the rue de Rennes, in Paris, where I spent my junior year of college. As I recall, these shoes were wildly popular that year and they accompanied me home, along with a pair of bronze pumps and a pair of gray short boots, among other items.
I just have a little problem with the pattern's being able to indicate source when (ahem) Vans may not have been the first to adopt it (yes, I know we've got a territoriality issue here but humor me). My daughter has these Vans:
As far as I'm concerned, they're just shoes with a cherry pattern. And the checkerboard ones should be treated the same way.
But my biggest problem here is this:
I bought these Creeks deck shoes no later than the end of May, 1982, at the Creeks store on the rue de Rennes, in Paris, where I spent my junior year of college. As I recall, these shoes were wildly popular that year and they accompanied me home, along with a pair of bronze pumps and a pair of gray short boots, among other items.
I just have a little problem with the pattern's being able to indicate source when (ahem) Vans may not have been the first to adopt it (yes, I know we've got a territoriality issue here but humor me). My daughter has these Vans:
As far as I'm concerned, they're just shoes with a cherry pattern. And the checkerboard ones should be treated the same way.
Looks like Creeks shoes are indestructible
Blague à part, I understand your point. Also this raises the question : can patterns be considered as trademarks ? I think of Louis Vuitton, Burberry...
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A mon avis, a logo within a pattern (a la Louis Vuitton) is of course a trademark, whereas I think the Burberry plaid is much more difficult to conceptualize as one, because it may comprise, e.g., the whole of a garment and thus has an esthetically functional aspect.
I do love my old Creeks, not least for the fact that they allow me to illustrate to my daughters that there is indeed nothing new under the sun.
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Of course the squares are too big to be Vans! I was not fooled. Do you still wear those shoes? I can just about imagine what you've stepped in while wearing them....
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