The NZ Herald sought expert opinion from Senior Associate, Sebastien Aymeric, on a potential US trade dress infringement of Allbirds shoes by Amazon.

This article is available in full on NZ Herald. Here is an excerpt:

“In the United States, “trade dress” protects the appearance of a product,” says Sebastien Aymeric. “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, 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.”

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.”

“It would require a lengthy full trial to decide whether there is trade dress infringement and whether Amazon should stop selling its shoes.”