Can Allbirds, the trendy, fast-growing shoe company co-founded by ex-All White Tim Brown, repel a copycat attack from Amazon? The Herald asked an intellectual property expert for his verdict.
US giant Amazon has just released a woollen shoe that strongly resembles Allbirds' signature Wool Runner product - but sells for less than half the price.
The copycat footwear is being marketed by Amazon's inhouse "206 Collective" brand for US$45 ($71).
All-birds co-founder and co-CEO Joey Zwillinger was quick to hit back, telling Co.Design there was no way Amazon could produce a US$45 shoe if it followed Allbirds green philosophies around sourcing materials and manufacturing (and indeed while Amazon's "Galen Wool Blend Sneakers" are 56 per cent wool, they also contain polyester and nylon).
"Given what I know about manufacturing, there is no way you can sell a shoe for that low while taking care of all of the environmental and animal welfare considerations and compliance we take into account," Zwillinger said. "Amazon is stating that it wants to be a green company. It should be taking steps to make their products more sustainable."
Will Allbirds follow up with legal action?
The industry is watching.
Certainly, Allbirds has before. In 2017, Allbirds took infringement action against US company Steve Madden, which had released a US$89 Allbirds lookalike. The case was settled out of court on undisclosed terms.
And just recently, Allbirds took filed in the US District Court for the Eastern District of California against Austrian footwear company Giesswein Walkwaren for selling sneakers that it called "identical in all material respects" to the Wool Runner. The action is ongoing.
Fleeced! Amazon copycat of Allbirds shoes sell for less than half price
• NZ's Zuru countersues Lego, escalating toy war
Amazon - which declined the Herald's request for comment - is "notorious for brazenly making cheaper lookalikes of popular products on the market, from Warby Parker glasses to the Instant Pot," US business publication Fast Company noted earlier today.
But if Allbirds goes legal, would it have chance?
"In the United States, "trade dress" protects the appearance of a product," says Sebastien Aymeric, a senior associate with James & Wells, a lawfirm that specialises in intellectual property issues.
A trade dress can be registered with the US Patent and Trade Mark Office but will still protect a product if not registered, Aymeric says.
"Allbirds is in effect arguing its Wool Runners have a unique and distinctive appearance - such that consumers, when they see those shoes being advertised, know they are Allbirds shoes. In that respect, trade dress functions much like a trade mark in that it acts as a badge of origin."
Amazon's insider advantage
While manufacturers copying each other's designs is nothing new, with Amazon there's an extra wrinkle because it's also a giant e-commerce platform.
Fast Company mutters darkly, "According to brands and experts, Amazon gathers data about searches and sales of companies that sell products on its platform. It seems to use this information to determine whether it should create cheaper versions of these products through one of its many in-house brands."
And US lawmakers have questioned Amazon on whether it can use data as a road map to duplicate products under its more than 80 private-label brands, eating into the profits of the sellers that helped make the Amazon platform successful.
This dual role could factor into the Allbirds case, Aymeric says. "Amazon, as an online marketplace and a retailer itself, is in a unique position to take advantage of the data generated by consumers and retailers on its platform. This establishes a clear 'causal connection': Amazon had access to Allbirds shoes and the opportunity to copy - although that would not be hard to establish at trial anyway considering the strong reputation Allbirds has now acquired."
Don't mess with my blue wool shoes
Allbirds could ultimately prevail but Aymeric says, "My gut feeling here is that it may be difficult here for Allbirds to obtain an urgent interim injunction considering Amazon's shoes sell for half the price of Allbirds' and are marketed as "Amazon Brand" thus decreasing the likelihood of confusion."
There are also some differences between the products, he notes (and ironically, Zwillinger's jab at Amazon for using some artificial materials only highlights this point).
"It would require a lengthy full trial to decide whether there is trade dress infringement and whether Amazon should stop selling its shoes."
The James & Wells man also notes that while we don't know the terms on which Allbirds and Steve Madden settled their spat, the offending Steve Madden shoes are still available on Amazon.