Is your high heeled Italian shoe lacking style and pizazz? How about some fringe? Enter Aquazzura stage left with it's popular shoe - Wild Thing. Aquazzura is a Florence based shoe brand by talented designer Edgardo Osorio. Wild Thing was a fashion success, and like any fashion success, copycats were waiting in the wings. Enter stage right, Ivanka Trump and Michael Fisher.
In June 2016, Aquazzura filed a lawsuit against Trump and Fisher. Aquazzura alleges that Trump and Fisher infringed Aquazzura's trade dress rights. Trade dress is defined as the overall commercial image of a product, which identifies the source of the product and distinguishes it from others. Aquazzura claims it has trade dress protection in the style and form of the Wild Thing shoe. Aquazzura specifically asserts trade dress protection in the overall shape of the shoe, the shoe's stiletto heel with an open toe, and the shoe's fringed vamp and ankle wrap closure made of tasseled string. In other words, when consumers notice the shoe's style and form (the alleged "commercial image"), they think "ah!" that is Aquazzura's product. Aquazzura insists that Trump and Fisher made a copycat shoe and consumers are likely confused that either 1) this copycat shoe is actually made by Aquazzura or 2) the copycat shoe was sponsored, endorsed, or approved by Aquazzura. Trump and Fisher deny that they have infringed Aquazzura's trade dress and specifically ask the court to find that their shoes do not infringe on Aquazzura's rights.
The key question in this dramatic play is the following: Is Aquazzura's shoe really protected trade dress? When you think of trade dress, you usually think of the product's packaging - the box or container in which the shoe is sold. That said, the product design (the shoe itself) can also be protected "trade dress"; however, the path to protection is far more difficult. The source identifying design has to not only be non-functional but people actually have to associate the non-functional design with the brand.
Here, Aquazzura claims trade dress protection in the actual product design, Wild Thing. For Aquazzura to successfully protect the shoe's style and form, Aquazzura needs to establish that 1) the overall shape of the shoe, the stiletto heel with an open toe, and the fringed vamp and ankle wrap closure made of tassled string are not functional parts of the shoe 2) consumers associate the overall shape, heel, fringed vamp, and tasseled ankle wrap of the shoe with Aquazzura and 3) these consumers are likely confused that Trump and Fisher's shoes were made, approved, or sponsored by Aquazzura.
Needless to say, Aquazzura has a difficult road ahead despite Trump and Fisher's blatant copying of Aquazzura's shoes. On behalf of my sister, who is a fashion designer, and the many creative people out there who suffer from the immediate copying of their creative and labor intensive fashion designs, I wish Aquazzura much luck.