By: Sarah Benjamin

Many shoe companies, famously including Nike and Adidas, are continuously ripping off designs from other shoe companies to keep up with the demand of consumers.[1] Because of the demand for fast fashion, companies such as Zara have created their business models off of minorly adjusting or changing designs from other brands, then quickly and cheaply manufacturing those designs and profiting off of them.[2]  An independent designer, Tuesday Bassen, took to social media to share that Zara had copied her designs for pins and more.[3] Clothing brands are able to defeat copyright lawsuits because the designs are either not unique enough to a particular designer or contain any “distinguishing logos, brands, or original prints.”[4]

For sneaker designs, there are three possible intellectual property protections, including trademarks, patents, and copyrights with the decisions from Star Athletica v. Varsity BrandsChristian Louboutin v. Yves Saint Laurent, and Adidas v. Skechers shaping “sneaker law” by laying out the contours and frameworks to address copyright, trademark, and trade dress claims.[5] Specifically, the Supreme Court in Star Athletica set out a standard for copyrighting artistic features is “(1) can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work -either on its own or fixed in some other tangible medium of expression–if it were imagined separately from the useful article into which it is incorporated.”[6] In Christian Louboutin v. Yves Saint Laurent, the court found that the color red used by Louboutin was distinguishable and recognizable enough to warrant copyright protections.[7] Further, in Adidas v. Skechers, the court held that the Stan Smith design of Adidas shoes had taken on a secondary meaning and, therefore, a similar design made by Skechers infringed upon the design.[8]

One of the aforementioned potential ways to protect sneaker designs is through patent protection.[9] Yeezy, Kanye West’s sneaker brand with Adidas, successfully used the novel standards from Star Athletica to gain copyright protections for his designs.[10] While it took three applications, Adidas was able to copyright the Yeezy Boost 350 designs based on its two- and three-dimensional designs.[11] The Copyright Review Board determined that the creative and distinctive manner in which the familiar and common shapes were arranged in allowed for the design to be copyrighted.[12]

On October 18, 2022, Skechers filed a lawsuit against Hermès claiming that the design of the soles of Hermès’ Éclair and Envol style of sneakers infringes on two of their design patents.[13] Specifically, in its complaint, Skechers set forth that the basis for the patent infringement was the soles of the Hermès shoes copied the design patterns from the Skechers’ Go Walk footwear.[14] Skechers and Hermès will likely reach a settlement agreement based on the recent litigation trends of other shoe companies.[15] For example, Adidas and Nike sued each other over patent infringements. [16] Despite the International Trade Commission (“ITC”) beginning an investigation, both companies chose to settle rather than continue the litigation.[17] Adidas and Nike have had a long-standing, contentious relationship with many lawsuits from both sides, and perhaps because of both past success and failure, the two companies prefer settlement over continued litigation. [18] Moreover, up to ninety-seven percent of patent infringement lawsuits are settled because of the enormous litigation costs and time necessary.[19] For Skechers, while the lost profits are substantial given the large price differential between its approximately hundred dollar shoes in comparison to Hermès’ approximately nine hundred dollar shoes, the potential cost of litigation may incentivize Skechers to still choose to settle its case.[20]

The sneaker industry is growing rapidly and in recent years, litigation surrounding copyright infringement and trademark has significantly risen.[21] In order to combat the issues with successfully bringing such litigation and not only relying on settlement agreements, lawyers will have to find creative or novel solutions to bring these claims, such as bringing their cases to different enforcement agencies. [22] One article suggested that the ITC could be a source of regulation and enforcement against companies stealing the designs of other companies because the “quasi-judicial federal agency is charged with protecting U.S. domestic entities from unfair competition,” which includes patents and trademarks.[23] The ITC could provide a faster, less costly enforcement procedure that would still enable companies to obtain monetary damage. [24] Prior to settling its case with Adidas, Nike brought its complaint for patent infringement to the ITC. [25] Nike wanted an injunction against Adidas to prevent Adidas from bringing its shoes into the market because it is much harder to obtain such a judgment from a federal district court.[26] Therefore, if Skechers chooses not to settle against Hermès, the company can likely seek aid from the ITC as it is comparatively easier to obtain the sought after decision, and the ITC has the jurisdiction to determine patent infringement cases. [27]


[1] See Elizabeth Segran, The shoe industry is at war with itself over stolen design, Fast Co. (Oct. 18, 2019), (stating that companies including Nike, Sketchers, Steven Madden, Balenciaga, and Allbirds have all recently been in litigation with each other over similar shoe designs).

[2] See id.

[3]  See id.

[4] See Julia Brucculieiri, How Fast Fashion Brands Get Away With Copying Designers, HuffPost (Sept. 4, 2018 5:45 AM),

[5] See Shannon N. Proctor, Talking Sneakers (and Law) with Sneaker Law, Am. Bar Ass’n (Mar. 30, 2022),

[6] See id.; Star Athletica, L.L.C. v. Varsity Brands, Inc., 580 U.S. 405, 409 (2017); Dorien Clark, The Yeezy Boost 350 Copyright Registrations: Did Kanye West Turn Justice Breyer’s Fear Into a Reality?, 19 UIC REV. INTELL. PROP. L. 244 (2020).

[7] See id.

[8] See id.

[9] See Proctor, supra note 5.

[10] See Clark, supra note 6.

[11]  See id. at 252, 254.

[12]  See Rosie Norwood-Kelly, Is Kanye Really a Creative Genuis? Yeezy Boost Designs Could Confirm, Finnegan (May 22, 2019),

[13] Christopher Yasiejko, Hermès’ Profits on $800-Plus Shoes Focus of Skechers Patent Suit, Bloomberg (Oct. 18, 2022, 3:36 PM),

[14] See id.

[15]  See Blake Brittain, Adidas sues Nike over run-tracking, shoe-adjusting technologies, Reuters (June 10, 2022, 3:29 PM), (explaining the litigation between Nike and Adidas over patent design issues).

[16] See Blake Brittain, Nike, Adidas settle patent fights over shoe technology, Reuters (Aug. 19, 2022, 12:31 PM),

[17] See id.

[18] See e.g. Brendan Pierson, In Brief: Nike prevails in shoe patent dispute with Adidas, Reuters (June 25, 2020, 6:57 PM),

[19] See Branka Vuleta, 25 Patent Litigation Statistics- High- Profile Feuds about Intellectual Property, Legaljobs (Apr. 29, 2022),

[20] See id.

[21] See Proctor, supra note 5.

[22] See William D. Belanger et al., Crocs Rock: Using the ITC to Stop Trademark Infringers, Bloomberg (Aug. 16, 2021 4:00 AM),

[23] See id.

[24] See id.

[25] Warren Conway, Nike Asks ITC to Block Shoe Imports from Adidas, JDSupra (Feb. 17, 2022),

[26] See id.

[27] See id.

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