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Dive Brief:

  • DTC shoe companies Birdies and Rothy’s have reached a settlement in a lawsuit filed by Rothy’s in April, and Birdies has agreed “it will not make, use, sell, offer for sale, or import” a shoe that Rothy’s had said infringed on its design patents, according to court documents filed by Judge Vince Chhabria in the U.S. District Court of Northern California.

  • In its final judgment on Aug. 25, the court permanently enjoined Birdies from producing or selling its “knit Blackbird” shoe, which was the subject of Rothy’s complaint, “and any other products that are not more than colorably different” from and infringe Rothy’s designs.

  • Birdies had earlier “denied all claims and liability for the alleged infringement asserted by Rothy’s.” But as part of the settlement, the retailer has acknowledged that Rothy’s claims are valid and that its shoe infringes one or more of Rothy’s design patents, per the court documents.

Dive Insight:

Rothy’s made clear on Monday, in announcing this legal victory, that it intends to fiercely protect its designs.

The DTC shoe brand noted in a press release that it has prevailed in other intellectual property cases, including in January 2021 in the U.K. against Austrain shoe brand Giesswein’s and in September 2019 in the U.S. against Oesh, which specializes in shoes for those with wider feet or foot issues.

“With over 200 design patents granted or pending, we care deeply about protecting the intellectual property Rothy’s works so hard to create,” Rothy’s Chief Legal Officer Marie Satterfield said in a statement. “This court order underscores the strength and staying power of Rothy’s robust IP portfolio. We will continue to vigorously enforce Rothy’s rights and hold accountable those who infringe our designs.”

Birdies and its attorneys didn’t immediately reply to requests for comment.

While fashion trends evolve in part as designers influence each other, the industry is also plagued by counterfeiting, which has only exploded since the dawn of e-commerce. The problem is rife on Amazon, where marketplace sellers are often accused of copying name brands, and Amazon itself has been accused of copying its own sellers. In fact, between 2018 and 2020, retailers — Amazon, Ross Stores and Zulily, in that order — were the top defendants in copyright infringement lawsuits, according to Lex Machina’s 2021 Copyright & Trademark Litigation Report.

This year these issues spilled into the metaverse, with Nike pursuing claims of counterfeiting and false advertising against shoe marketplace StockX that originally centered on non-fungible tokens.



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