It seems to be open season on shoe knockoff lawsuits. The latest in a long string being filed is against Paris Hilton.

While there are a number of rather hotly debated shoe knockoff lawsuits, they do have one thing in common (mostly) and that is a designer is suing someone else for copying their original shoe design.  “Will the suits be successful? Tough question and the answer isn’t clear in any of the lawsuits going on right now, largely because only one of them – the Paris Hilton suit – has a design patent involved. The rest of the designer knockoff lawsuits don’t,” said David Erikson, attorney at law, in Los Angeles, California.

The other suits making headlines are Balenciaga v. Madden (a popular guy to sue lately) and Danner v. Rag and Bone. If you’ve spent any time surfing the Internet lately, you’ll have already had a gander at some pretty gutsy and blatant knockoffs. It really takes chutzpah to tackle a big name designer and rip off their original creations. “While the buying public may appreciate the knockoffs, the designer views it as an infringement of their creation and intellectual property,” explained Erikson.

Unfortunately, it is very difficult for designers who have had their territory poached to come up with legal theories to fight back. Seems like it’s the same old – same old arguments that don’t tend to hold too much water when they get to court, unless of course the knocked off designer has a design patent, or it is a truly signature piece that the public associates with the original designer. Then we’re talking about a whole other can of worms.

“However, back to Paris Hilton who raised the ire of Brooke Hollow, doing business under the name of Gwyneth Shoes, by supposedly knocking off a heart-shaped shoe sock that is evidently under patent number D579,642 and went even further by infringing on trademark rights because the pink heart shoe sock is considered to be a source and brand identifier for Gwyneth shoes,” Erikson outlined.

To add insult to injury, Hilton claimed on her website that she personally chose all the design elements of her shoes and in wanting to make sure it was comfortable, added the heart-shaped comfort pad. She further added that the pad would allow the wearer to dance all night long. She must be kidding. Those are killer stilettos.

“Let’s put this heart-shaped shoe sock into perspective. This is referred to as a design element. A design patent is a patent granted on the ornamental design of a functional item. While that may sound like it’s quite clear, and that the heart-shaped shoe sock is the ornamental design and the shoe is the functional item, it is nowhere near being that clear cut when the issue gets to court,” said Erikson.

Generally speaking, clothing and shoe designers don’t get design patents because they take forever and a day, are ridiculously expensive and in most cases, apparel design patent applications are rejected because they are not considered to be “new” in the purest sense. “Design patents tend to make sense only when there is a very original design element, not a retool or rework of a past theme, that the designer is clearly intending to use every season,” stated David Erikson, attorney at law, in Los Angeles, California.

Here’s a good question to consider: “Is the heart-shaped shoe sock very original and is it new in the pure sense?” Patent or not, this may be a tough question to answer come court time. Secondary meaning is hard to prove in litigation and even more so when it comes to shoes and clothing. However, having said that, if Brooke Hollow does have a valid design patent, the presumption of validity might result in a different outcome in this case.

To learn more about David Alden Erikson, Attorney at Law, visit http://www.daviderikson.com.