April 4, 2017

“Begun, the Clone War Has”

By Bryan K. Wheelock, Principal

Hot on the “heels” of the Supreme Court’s decision in Star Athletica, LLC v. Varsity Brands, Inc., (2:17-cv-02523PUMA SE has sued Forever 21 in the Central District of California for, among other things, copyright infringement in making a product simulating Puma’s CREEPER, FUR SLIDE, and BOW SLIDE sneakers.

Puma asserts its U.S. Patent No. D774,288 on the CREEPER sneaker:


Puma also asserts its trade dress rights in the CREEPER, as well as in the FUR SLIDE:


And again with the BOW SLIDE:


And last but not least, citing Start Athletica, Puma asserts copyrights in all three styles:

The asserted expansion of copyright protection to such designs seems to be the exact thing that Justice Breyer was concerned about in his dissent in Star Athletica.  Are fuzzy flip flops really something worthy of a century or more of protection?  Should competitors have to risk substantial awards of statutory damages and attorneys fees, as well as possible criminal penalties, to satisfy consumer demand for a product?  As Justice Breyer said (quoting Thomas Jefferson), sometimes costs can outweigh the benefit even of limited monopoly.

Or, more ominously, as Yoda once said, “Begun, the clone wars has.”