“Only after Skechers incurred the substantial risk and monumental expense of developing and promoting its shoes, did LL Bean enter the market with its infringing shoe.”
— Skechers lawsuit
“I’m a slow walker, but I never walk back.”
— Abraham Lincoln
One of the wonderful things about living in a city like Delaware is just how eminently walkable it is. For those who live or work in the older part of town, specialty shops, restaurants, salons, a deli, and a movie theater are all an easy trip on foot. Throughout the rest of the county, city and township parks, and the incredible network of green space managed by our Preservation Parks system makes a leisurely stroll through nature an easy trip.
Walking is one of my primary forms of leisure, relaxation and exercise. And for years, I walked in shoes more specifically meant for tennis, basketball or other sports. Several years ago I finally got a good pair of walking shoes, and they made quite a difference in the comfort of my daily walks. As it happened, those shoes were manufactured by Skechers. And those Skechers walking shoes are now the subject of a major patent lawsuit.
When it comes to corporations suing one another, we’re used to seeing complaints about intellectual property, but more often than not, those complaints are about copyright and trademark law. That is, they relate to people stealing logos, words, songs, stories and art.
Patent law is its own, very different, beast. Just to practice patent law, one must obtain a separate licensure, show competence in a specific area of knowledge, and be approved by the patent courts to work there. Patent lawyers frequently have additional degrees or training in engineering, chemistry, physics or other technical fields.
Skechers, it also turns out, has somewhat of a Disney-like history of legal action. According to their own complaint in the current suit, Skechers has filed hundreds of actions against supposed patent infringers. They’ve also sued other companies to protect trademarks, and have recently been defendants in a trademark lawsuit filed by Brooks Sports and a patent lawsuit filed by Nike. Six years ago it was Adidas bringing a patent suit against Skechers. Who knew shoes were so litigious?!
The instant action is over Skechers’ “Heel Cup” shoe design in U.S. patent number D 994,312 S used in its walking shoes which, according to the lawsuit, has been featured in advertisements with Willie Nelson, Martha Stewart, Snoop Dogg, and Doja Cat (how’s that for an eclectic group?). Now, our favorite Freeport, Maine business, L.L. Bean, is selling a $99 shoe fittingly called the “Freeport,” which Skechers says steals its design. (A side note: Did you know that Bean’s first and middle names were “Leon Leonwood”? The things you discover when doing research on a shoe lawsuits.)
All in all, the footwear market is heating up and going to court much more often. A blog post on thefashionlaw.com about the Skechers/L.L. Bean dustup notes that the footwear industry did almost $73 billion in business in 2022, and that number is expected to climb above $100 billion in the next 10 years.
L.L. Bean will need to respond, and there will be months of legal wrangling with expert reports, tense depositions, and many court hearings that use words like “gentle rolling lines and slopes” and “infringing shoe.” In the end, it’s likely that some monetary settlement will be reached or that L.L. Bean will simply modify its design.
In the meantime, I’ll keep putting on my Skechers for my evening and weekend walks, and enjoying the sights, sounds, and smells of Delaware. At least until the frigid winds of winter settle in and put those walks on temporary hiatus until the spring thaws us out.
David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Court of Common Pleas, where he has served as magistrate, court administrator, and now judge, since 2003. He has written a weekly column on law and history for The Gazette since 2005.
