When push comes to shove, who will win the legal battle over the copied shoe of the year, the Faithful motorcycle bootie original design by Alexander McQueen or the knockoff version by Steve Madden?

One of this year’s most interesting fashion cases deals with a very tricky issue, the copying of another designer’s work. The original designer is Alexander McQueen (McQueen).  The rip-off or knockoff copier is Steve Madden (Madden). “At the center of this hot controversy is the allegation that Madden, who is famous in his own right for knocking off anything he can get his hands on, virtually copied “every” detail of McQueen’s new Faithful bootie with the possible exception of the trademark skull zipper,” said David Erikson, attorney at law, in Los Angeles, California.

Many observers are calling this fiasco a studied imitation of the original design that first came out in January of this year. Whatever it is called, it is faithful in its reproduction down to almost every stitch except for the quality of the material, the way the boot happens to fold and where it folds, and the ordinary zipper pull as opposed to McQueen’s signature skull.

In fact, McQueen’s legal beagles will argue that the “only” element that Madden did not deliberately copy for his knockoff Seryna bootie was that zipper pull which is coincidentally a McQueen “trademark.” While Madden makes middle class lower income people very happy with his lower priced $130 boot, the McQueen original demands and gets at least $1,159.00.

“This is a highly flammable case for one reason; it’s extremely difficult to fight fashion knockoffs in court. Copyright law doesn’t protect against copying fashion design. However, lately there’s a trend to use ‘trade dress’ law as a weapon. Trade dress law is closely related to trademark law, which protects against rivals using a company’s name or logo to pass off their products as their own, or to confuse people into thinking their goods or services are related to theirs,” explained Erikson.

Trade dress law mainly protects the packaging of a product that the public comes to associate with a particular company. “Without any better weapon, fashion designers are using trade dress to protect against their imitators even though this area is quite vague,” Erikson said. In one of the leading cases, the Supreme Court held that the décor of a chain of Mexican restaurants was a type of trade dress. Other cases have held that trade dress encompasses a product’s “total look and feel.”

Fashion lawyers jumped in claiming, in essence, that an article of clothing is a big piece of packaging. Therefore, if that’s true and the public associates that packaging with a particular line, then trade dress law should work in fighting knockoffs.

The thing to notice about the McQueen vs. Madden case is this: McQueen’s lawyers have to go to great lengths to describe the boot design as one that the public associates with his brand, like a trademark. Otherwise, Madden would be free to copy. McQueen lawyers do this by talking about branding, promotion, press, etc.

Unfortunately, fashion designers who have been knocked off often can’t make a trade dress kind of claim such as is possible in this instance. “Even here, it’s probably a bit of a stretch to say the public associates this particular shoe with Alexander McQueen. Ultimately, it’s a lot easier when what is copied is a signature style. The outcome of this case will be quite interesting,” commented David Erikson, attorney at law, Los Angeles.