Meet Bobs, a recently launched shoe line from Manhattan Beach-based Skechers USA Inc., which recently started selling at the company's stores. Were you expecting someone else?
If the name that popped into your head was "Toms," you can be forgiven, since the Bobs shoe — and the charity element associated with it — seems to pluck a couple of pages out of the Toms Shoes' playbook. That company, founded in 2006 by Blake Mycoskie, launched with a single style of alpargata — essentially an espadrille — and a pledge to donate a pair of shoes to a child in need for each pair sold.
For the last several weeks, fashion and footwear blogs have been abuzz about the similarities between the two, opining that Skechers' efforts amount to nothing more than a blatant rip-off of the Toms Shoes line.
Neither Skechers Chief Executive Robert Greenberg nor Toms founder Mycoskie was available for comment on the matter. Mycoskie, who was en route to Ethopia at press time, issued the following statement via e-mail: "At Toms, giving isn't a trend, or a fad, or a part of our business — it is our business. We're proud that Toms has inspired a global movement and continues to influence other companies around the world."
A statement from Jennifer Clay, Skechers' vice president of corporate communications, read, in part: "We saw what Toms is doing and believe their charitable efforts and program are inspirational. We applaud their efforts and believe with our distribution and network we can reach even more children around the world."
Clay's statement continued: "Skechers is proud of its design, and we don't think there should be any issue with being inspired, as many other companies have been, by a design that is seven centuries old and still popular throughout the world today."
Skechers intends to donate not one but two pairs of shoes to needy children (through a charity called Soles4Souls) for each pair of $42 Bobs it sells, Clay says. She estimated in her statement that the company "may be able to donate up to 1 million pairs of shoes next year."
That comes on the heels of news that Toms, whose signature shoe starts at $44, donated its millionth pair of shoes in late September.
Though Skechers might have cloned the Toms business model — and rolled out some similar-looking shoes to boot — that doesn't mean they've done anything legally actionable. (And a spokesman for Toms Shoes said the company had no plans to pursue legal action.)
"Under U.S. law, there are two intellectual property regimes involved here: copyright and trademark," said Douglas Hand, a New York-based attorney with Hand, Baldachin, Amburgey who specializes in the fashion industry and does not represent either company. Given that alpargata-style footwear has been around for centuries, Hand said pursuing a successful copyright claim would be "an extreme uphill climb."
As to trademark law, Hand said. "Your standard would be to show the likelihood of confusion in the minds of relevant consumers."
Hand said that while a substantial body of case law addresses the various and assorted issues of confusion under trademark law, the Toms/Bobs situation introduces a novel wrinkle.
"While you could argue," Hand said, "that Skechers is trading off Toms' goodwill and what it represents — namely giving shoes to needy children — it's unlikely any judge is going to say you're the only company that can give kids free shoes."
Santa Monica-based Toms Shoes is a privately held, for-profit company that does not disclose its sales figures. But using its "one for one" formula, the 1 million pairs donated to date equate to a minimum of $44 million in sales since the 2006 launch. Publicly traded Skechers was founded in 1992 and saw $1.4 billion in sales in fiscal year 2009, according to its annual report.