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May 2, 2024
John Rizvi, Esq.

The Emperor Has No–Shoes? Trump’s New Sneakers Could Get Him In More Legal Trouble

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Donald Trump made waves at Sneaker Con in Philadelphia this week by unveiling his latest business venture: sneakers.

The gold-uppered, red-soled shoes, emblazoned with a bold embossed “T” at the tongue and on the upper, set fashionistas and legal pundits alike ablaze as they pondered what this new move could mean–and whether the new shoes are an open invitation to yet another lawsuit for the beleaguered former President and presumptive Republican nominee for this Presidential election cycle.

But are the Donald’s new, defiant kicks a timely retort to say he still has his feet on the ground, a desperate bid to raise funds to offset his skyrocketing legal fees, or an outright con job that could put him in front of yet another judge in the middle of his already-crowded legal and political calendar?

Kicking It All Off

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Trump appeared at Sneaker Con as a surprise guest to show off his new "Never Surrender" shoes: $400, red-soled high-top sneakers embellished with gold uppers, red stripes, blue stars, and a bold capital “T” on the tongue.

According to the official Trump Sneakers website, these shoes have already sold out. But if you happen to be lusting after a pair of your own, before you get too much FOMO about there apparently being no more, let’s take a closer look.

Trump, of course, displayed only the most expensive “Never Surrender” version.

Less pricey and eye-catching versions, the "POTUS 45" and the "Redwave," are available through the site. But in addition to the three different styles and price points of the shoes, the site also offers a cologne and perfume called “Trump Victory47,” an eyebrow-raising but unsurprising move for a website whose bombastic product descriptions often tip over into outright jingoism.

This despite the boilerplate at the bottom of each page which states that CIC Ventures LLC merely licensed the Trump name and trademarks, has no other affiliation with the former President, and is not political in nature.

However, while many observers and pundits find the move and its timing gauche or even downright tacky, being over-the-top is not in itself a reason one need fear the attention of the courts in an official capacity.

That said, one would think that someone who has been dealt a couple of major legal losses in recent days (to the tune of an estimated $454 million in penalties and rising daily) might decide that maybe now isn’t the optimum time to go launching a new line of anything for public consumption, especially one with such a distinctive and possibly trademark-infringing design.

Again, though, while the big reveal raises a lot of questions and invites a certain amount of ribaldry, it’s not necessarily a reason to think that the courts may be interested in the situation.

Except that there very well could be a reason–and it comes from one of the biggest names in modern fashion.

Dropping the OTHER Shoe

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Christian Louboutin is one of the most prominent fashion designers of our era. Since 1992, he has consistently turned out shoes for women and men–and one of the signatures of a genuine Louboutin shoe is the distinctive red lacquered sole. In fact, the Louboutin red sole is such an integral part of the brand that courts from New York to New Delhi have consistently ruled in Louboutin’s favor in trademark disputes against rivals who sought to use a similar color scheme for their own fashion offerings.

While the Trump “Never Surrender” sole does not feature the lacquered red leather of a genuine Louboutin offering, and the less pricey offerings as shown on the website don’t include a red sole at all, that doesn’t automatically give The Donald a free pass.

In fact, in 2012, the Court for the Southern District of New York ruled that Yves St. Laurent, a key competitor of Louboutin’s, could only sell red-soled shoes as long as the whole shoe was red. It’s worth noting here that in the New York YSL case, Tiffany’s, whose coveted signature little blue boxes are themselves trademarked because of the distinctive shade of blue utilized, filed an amicus curiae brief in support of Louboutin.

The Court initially disagreed with the assessment that one could lock down an entire shade of a color as a trademark element. But Judge Victor Marrero ultimately ruled in Louboutin’s favor while also slightly curtailing the breadth of Louboutin’s trademark, as mentioned above.

It was this ruling, and the publicity it engendered in the fashion world, that led commentators on both the fashion and legal world to wonder whether Louboutin will go after Trump’s new shoes.

After all, if Louboutin does nothing and allows the Trump shoes to continue to be offered without legal challenge, it could and likely would undermine the strength of the Louboutin mark. It could also be read as a political endorsement of Trump, which could jeopardize the brand’s ability to reach its target market.

And Louboutin is not known for shying away from legal clashes with alleged trademark infringers, which would make Louboutin holding its action in this situation even more of a cause for comment by fashion industry analysts and legal observers.

Bringing The Shoes to Heel

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On the other side of the equation, of course, is Trump, whose legal losses in civil cases and impending defense in criminal actions have dominated the news cycle for months. If the “Never Surrender” sneakers are viewed as infringing on Louboutin’s trademark, and according to the logic of the New York YSL ruling they could certainly be seen that way, Trump’s already shaky financial situation would be hard-pressed to withstand yet another legal onslaught.

It has been theorized that Trump chose to unveil the shoes at this moment in another well-publicized effort to raise money to help defray the costs of his legal defense and blunt some of the financial havoc wrought by the fines and damages the courts have ordered him to pay in the wake of his recent defeats.

Whether this is true or not is a matter of speculation upon which I won’t remark further except to note that such speculation is rife in the media. However, it would be the epitome of irony if, by releasing a shoe line intended to help bolster his flailing financials, he instead unwittingly invited another party to take another monetary bite out of his empire.

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Yet more questions are raised by the Trump Sneakers website. The captions for the images inviting customers to preorder state that “The images shown are for illustration purposes only and may not be an exact representation of the product.”

Additionally, the site states that “The [Allegedly Sold Out] Never Surrender High Tops are estimated to ship in July 2024.” This slippery phrasing has already led to some people questioning whether those who ponied up for the blinged-out kicks will actually receive them in a timely manner, or if there will be “supply chain issues” or other difficulties that keep moving the actual delivery date further and further down the line–while Trump spends the money raised by the shoes and other offerings front the site to try to stop the financial bleeding of his brand.

If the Never Surrender shoes are estimated to ship in July, Louboutin would need to file suit and apply for an emergency injunction to prevent the shoes from being sold or delivered until the issue is resolved in court.

Since the website’s own Terms and Conditions state in all caps that, “UNLESS OTHERWISE INDICATED ON THE WEBSITE AND/OR IN THESE TERMS, OR AS OTHERWISE DETERMINED BY US IN OUR SOLE DISCRETION ON A CASE-BY-CASE BASIS, ALL SALES ARE FINAL AND NON-REFUNDABLE,” such an injunction would effectively shut the site off from its customers–and leave them out the money while the case plays out.

However, Whether Trump Could Even be Named as a Party in the Infringement is Another Matter Entirely.

The website explicitly disavows any connection with Trump except the license agreement entered into to allow the site to use Trump’s protected intellectual property and likeness. Louboutin would likely need to go after Trump Sneakers directly, but could conceivably name Trump as a co-defendant on the grounds that his endorsement of the Never Surrender sneakers at Sneaker Con made him a de facto spokesperson for the site and therefore a secondary party to trademark infringement. This would mean that the website and its principals would bear the primary onus of any infringement action, but that Trump himself may not be completely immune from the legal consequences. Much would ride on the details of the license agreement between CIC Ventures LLC and Trump, as well as what comes out during discovery or trial about just how involved Trump actually was in the design, development, promotion, or sale of the Trump Sneakers products.

But I Think It’s Safe to Say That if Louboutin Does Go After Trump Sneakers, the Result Would be a “Shoe-In.”

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With such a prominently known trademark in play, it is very difficult to see how Louboutin could possibly lose given the case law backing its position. And, of course, there are the terms and conditions of the website itself, which open up a rich vein of questions that Louboutin could exploit to further bolster its position in the courts and in the media.’

But we’ll just have to see how the shoe drops once, and if, Louboutin decides to move on this.

About John Rizvi, Esq.

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John Rizvi is a Registered and Board Certified Patent Attorney, Adjunct Professor of Intellectual Property Law, best-selling author, and featured speaker on topics of interest to inventors and entrepreneurs (including TEDx).

His books include "Escaping the Gray" and "Think and Grow Rich for Inventors" and have won critical acclaim including an endorsement from Kevin Harrington, one of the original sharks on the hit TV show - Shark Tank, responsible for the successful launch of over 500 products resulting in more than $5 billion in sales worldwide. You can learn more about Professor Rizvi and his patent law practice at https://www.ideaattorneys.com

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