Aquazzura vs. Trump. A (scandal) in the fashion world.

Aquazzura is a fashion house founded in 2011 in Florence by Colombian designer Edgardo Osorio that produces women’s shoes; it recently filed a lawsuit for trademark infringement against Ivanka Trump and her licensee, Marc Fisher, alleging that they copied the design of the “Wild Thing Shoe”—a best-seller for the Florentine company—citing, among other things, the protection afforded by trade dress law.

In addition to the protection provided by copyright and trademark law, U.S. law provides for the protection of what is known as “trade dress.” Trade dress is a concept developed through case law in the United States, as it is not expressly provided for in the Lehman Act. The courts have defined it as a set of characteristics of a package or product, which may include size, shape, color, placement, labeling, and graphics.

The protection of a product or service through trade dress requires two characteristics, either of which may be present:

• intrinsic distinctiveness (which is quite rare);
• distinctive character acquired over time through extensive use in the marketplace.
• A trademark is inherently distinctive if, by its very nature, it is capable of identifying the source of the goods or services (see Wal-Mart, cited in Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768 (1992)).

The case is currently pending in the U.S. District Court for the Southern District of New York.