In just the latest installment of legal troubles for the Trump administration, on Friday a New York judge said Ivanka Trump will have to appear in court for a case involving possibly copied shoe designs from the Italian shoe brand Aquazzura.
Now, Trump's fashion business has long been accused of ripping off designs by different companies starting as early as 2011, so this is nothing new. But given Trump's elevated profile as a first daughter, and now this order to appear and testify under oath in court, this feels like something that could only get bigger and more problematic for Trump and her business, which is suffering, as we all well know.
To get a better understanding of this case, let's run through how this suit began, and what it really means for Trump's brand.
June 2016: It all started back in June 2016, when the shoe brand Aquazzura filed a trade dress infringement suit against Ivanka Trump and her licensee, Marc Fisher, for copying their Wild Thing red sandal, which featured fringe across the toes and at the end of the ties. In Ivanka Trump's version, the shoe is quite similar but much cheaper, going for $145 or more, compared to Aquazzura's $700 or more.
According to Aquazzura, that shoe was its most distinctive.
So what is a trade dress infringement suit, exactly? According to Julie Zerbo, lawyer, legal consultant and editor-in-chief of the Fashion Law, trade dress is a type of trademark that is indicative of a brand. Think Christian Louboutin's red soles or Burberry's signature plaid.
"Trade dress says that the packaging of a product, the visual appearance of a product, is so distinctive that it's also an indication of source," Zerbo said in an interview. "Aquazzura is claiming that the appearance of the Wild Thing tassled shoe is so distinctive that when people see it that they know it's coming from the Aquazzura brand. By copying that design, then Ivanka is infringing that trade dress."
According to Zerbo, Aquazzura could have a hard time proving that this one style of shoe really qualifies as trade dress, because it's not nearly as memorable or iconic for the brand as Louboutin's red or that Burberry plaid.
Additionally, Aquazzura claimed at the time of this suit that Trump's company knew they were copying their shoe, and were trying to profit from its style. Because of that, the Italian footwear brand set forth claims for not only trade dress infringement but unfair competition and deceptive trade practices as well.
November 2016: Although Trump's company attempted to refute these copying claims in August by filing a counterclaim saying Aquazzura's shoe styles are not technically subject to trademark protection, by November Aquazzura was ready to add fuel to this fire.
In November, Aquazzura added another shoe design, which they are claiming Trump also copied, to its original suit. This shoe design, called Christy, is a black flat that laces up to the ankle. Perhaps in response to Trump's claim that none of their shoe styles could be trademarked, Aquazzura went ahead and made sure that although the red fringe heel did not have patent protection, meaning anyone could create a show of its likeness, this black flat did.
So now there's a "design patent infringement" claim to this lawsuit, which trademark lawyer Thomas Wilentz, who has practiced trademark law for more than ten years now, thinks is probably a much easier case for Aquazzura to win.
"If you copy a design patent, you're probably going to be in some trouble," Wilentz said in an interview. "The whole purpose of the patent is that it gives the supplier the ability to be the only one who can design a shoe like this. Meanwhile, a trademark is protecting the source identification function of a logo or brand name. If you own a patent for something, though, then you're the only person who can make that thing."
Now, as we noted before, Trump is being called to testify, which is something she really, really does not want to do.
What's ahead: It's going to be extremely hard for Aquazzura to convince the New York court that this red fringe shoe qualifies as trade dress. Why? "There are plenty of these shoes that have straps that go around the ankles," Wilentz explained. "Maybe those two little loops or the pieces of strings, maybe that's distinctive, but it would be difficult to prove that it's trade dress, and not just an ornament or a particular style of shoe that doesn't rise to the level of trademark."
There are a number of claims in this case at this point, so it's not like if Aquazzura can't win on the trade dress front everything was for naught.
"There are multiple claims here, so it's not a winner-take-all," Zerbo added, noting there will likely be not much harm done to Trump if her company is found guilty of any of the above claims.
If the court does rule in favor of Aquazzura, the company is asking for pretty basic rewards, like injunctive relief, which means Trump would stop selling these shoe styles immediately, and an accounting of all the profits Trump's made from these shoes.
"Attorney's fees, if they win, could also be something they try to add on, then they could say we also want you to pay for our legal fees, which could be very expensive," Zerbo said. "But really it's just money. It's just stopping the sale of these shoes, which really couldn't be that expensive at all."
In the end, even if Trump does have to testify and feels humiliated, her business will likely be fine. A few coins to Trump is nothing. Ultimately what may be the most damaging thing for Trump after this case is that it's yet another stain on her reputation and fashion business, joining blotches like Trump's use of unfair, cheap and foreign labor and accusations of trying to quite literally capitalize on her position as a first daughter.