Shoe companies Rothy’s and Steve Madden are at each other’s throats

In August, after receiving a cease-and-desist letter from the venture-backed shoe startup Rothy's, shoe giant Steven Madden filed a pre-emptive lawsuit asking a federal court to rule that its Rosy Flat shoes don't copy design elements of the Point ballet flat that Rothy's began selling soon after its 2015 launch.

More, it asked that seven related patents that Rothy's has been issued - and that Rothy's has accused Madden of infringing - be declared invalid.

Now, Rothy's is batting back again, today filing counterclaims of design patent and trade dress infringement, trademark dilution and unfair competition, while also managing to get in a sick burn, writing in its filing that instead of "pursuing independent product development, Madden has chosen to slavishly copy Rothy's product design in violation of Rothy's valuable intellectual property rights."

It's hard to argue they aren't copycats once you see both shoes. Nearly as galling to Rothy's, Steve Madden's shoes retail for half the price. (Rothy's charges $145 for its shoes. Steve Madden sells its version for $70, and, unlike Rothy's, which are never discounted, Steve Madden's version of the shoe is currently on sale at Nordstrom Rack for $39.99.)

Steve Madden - now a 29-year-old company that's publicly traded, valued by investors at $3 billion and largely still run by Steve Madden himself (he's its creative and design chief) - is known for finding inspiration in the work of other brands that wish it would not. Among a handful of companies to tangle legally with the shoe titan in recent years is venture-backed Allbirds, which accused Steve Madden of copying its wool trainer in 2017.

AllBirds soon settled its lawsuit with the company. Alas, now AllBirds is reportedly fighting an Austrian footwear company, Giesswein Walkwaren, for making and selling sneakers that are "identical in all material respects" to Allbirds's wool runners.

Meanwhile, Rothy's just last month settled with a company, OESH, against which it had separately filed a patent and trade dress infringement lawsuit alleging its round-toe ballet flats are too similar to Rothy's own.

Neither is an uncommon situation. Instead, both underscore that for young retail brands, fending off competitors both big and small can prove both expensive and distracting. Indeed, the question begged is whether it's worth engaging.

While that's something that's often determined in hindsight, not everyone thinks it makes sense to spend the time and resources battling knock-offs. When we talked earlier this year with the venture-backed slipper-shoe startup Birdies, co-founder Bianca Gates noted that Target had already begun offering a similar slipper at a cheaper price point. "Everybody copies everybody," she said.

The company could use some of its funding to wage war, but she thought focusing on the company's product made more sense. "It's our job to create a brand beyond the silhouette of a slipper, because that can be knocked off, it's not defensible. What is defensible is why [a customer] is buying Birdies, and why she is telling her friends to shop us."