nike – Techdirt (original) (raw)

Nike To Discontinue App For Expensive Shoes Already Bought, Breaking Some Features

from the just-screw-it dept

Here we are again, with yet another example of how buying digital products, or buying products that have a digital component to them, doesn’t mean you have any actual ownership and control of those products. We have seen a bunch of examples of this recently, from Oral-B removing Alexa-based features from one of its toothbrush products, to Spotify fully bricking a piece of hardware it sold to customers mere months after selling them, to digital stores just simply disappearing a bunch of content people thought they had bought, only to learn that they had licensed it temporarily instead. In some of these cases, customers are offered refunds, typically after public pressure. In other cases, no refunds are offered and customers are told to go pound sand.

But in every single one of these situations there is one constant: customers made a purchase based on how a product would operate at the time of purchase, only to have that changed on the whim of the seller after the purchase. We can get into all the legalese and discussions about terms of service and contractual language we want, but the end result is customers thinking they were buying a product only to find out that, nah, not so much.

Which brings us to Nike. Now, I will fully admit that I only learned that Nike had a sort of “smart sneaker” that allowed customers to govern actions like self-tying laces and changing LED lights on the shoes through an app when I started looking into this story. For the life of me, I can’t imagine why anyone would want such a thing. However, I’m in my 40s these days and I’m probably no longer a good arbiter as to what the current sneakerhead culture is interested in.

And it seems plenty of folks did in fact buy the Adapt BB basketball sneaker, which came with the ability to control certain functions of the shoe with the Nike Adapt app. You can read all about the app on the Nike website, which is odd because Nike also recently announced that the app would be discontinued. This means that certain functions within the app for existing users will no longer function even if the user already has the app downloaded to their phone. And if they get a new device, or wipe their current device, they will also be unable to re-download the app at all.

Those who already bought the shoes can still use the app after August 6, but it’s expected that iOS or Android updates will eventually make the app unusable. Also, those who get a new device won’t be able to download Adapt after August 6.

Without the app, wearers are unable to change the color of the sneaker’s LED lights. The lights will either maintain the last color scheme selected via the app or, per Nike, “if you didn’t install the app, light will be the default color.” While owners will still be able to use on-shoe buttons to turn the shoes on or off, check its battery, adjust the lace’s tightness, and save fit settings, the ability to change lighting and control the shoes via mobile phone were big selling points of the $350 kicks.

And so here we are again. Nike sold expensive shoes to customers who bought them due to certain selling points, one of which was all the control they would have over the shoes using this app that is being neutered first, and which will disappear one way or the other eventually. Notably absent from any of Nike’s communication on this, as of the time of this writing, is any offer of any sort of refund. Or an offer to let the app go open source, so that others can continue developing it for customer use.

Instead, the customers are simply screwed out of the product they thought they were buying. Which, understandably, has them somewhat perturbed.

Adapt BB owners have shared disappointment after learning the news. One Reddit user who claimed to own multiple pairs of the shoes called the news “hyper bullshit,” while another described it as “immensely disappointing.”

Reddit user rtuite81 called Adapt’s sunsetting “entirely expected, but frustrating.” They added:

“I knew this day would come … I just didn’t think it would be so soon LOL. I’ve only had these for a little over a year and worn them about 15 times. Hopefully my current phone outlasts the shoes.”

What a sad way to throw up your hands and acknowledge that there’s nothing that can be done here. But something should be done. I’m going to keep repeating this: there needs to be a conversation started about consumer rights when it comes to digital products and products that have a digital component to them.

This practice of customers losing out on what they’ve bought at the whims of a seller cannot continue.

Filed Under: adapt bb, bricked, ownership, smart sneaker
Companies: nike

Nike Loses In EU Over ‘Footware’ Trademark After Losing In US Earlier This Year

from the 0-for-2 dept

It will come as no shock to regular readers here when I remind you all that Nike is a notoriously aggressive actor when it comes to policing its intellectual property, including for trademarks it holds. The reason that reminder is important as a matter of throat-clearing in this case is that one of the worst outcomes when it comes to trademark law is when you pair an aggressive holder of a mark with a mark that is also far too broad or generic, such that it never should have been granted in the first place.

Which brings us to Nike’s attempts to register and hold onto a trademark for “Footware.” The mark was supposed to be used in conjunction with a line of “smart sneakers”, where the shoes would be embedded with hardware running software that would ostensibly provide the wearer with workout metrics and statistics and whatnot. Nike applied for the mark in both the EU and United States. The United States application was halted and ultimately denied after an opposition was filed by San Antonio Shoes earlier this year.

San Antonio Shoes also argued that that the words “footware” and “footwear” are often used interchangeably, which renders the term merely descriptive, because phonetically identical words or simple misspellings do not remove the merely descriptive aspect of the word.

The Board agreed with San Antonio Shoes’ argument in a decision issued on Monday, stating, “as a whole, this combination of ‘Foot’ + ‘Ware’ does not result in a separate distinctive meaning. Even if applicant is the first to use this particular combination of merely descriptive terms, that does not justify registration if the only significance conveyed by the term is merely descriptive.”

Now, I would have also argued before the TTAB that the term is in and of itself generic. A portmanteau of two generic words, footwear and software in this case, doesn’t suddenly become non-generic as a result. Between that and the afore-mentioned phonetic similarities, there is zero reason this mark should have been approved even without the opposition. That detail aside, at least the Trademark Office managed to get to the right place and not grant the mark.

In Europe, though, it was Puma that opposed the trademark application, and for similar reasons. The EU General Court upheld the appeals panel’s decision to void the application, given the generic nature of the applied for mark.

The spat follows a complaint by Puma, which, among other arguments, claimed that Nike’s use of the word could lead to an interpretation of it as a type of software or technology for the feet.

Puma said it’s “delighted” with the ruling. The Bavaria, Germany-based firm said it “has been arguing for years that at least some consumers will read the term ‘footware’ as ‘footwear’ and therefore will only see the sign ‘footware’ as descriptive information regarding the intended purpose of the goods and services.”

Sorry, Nike, but you’ll have to come up with something a bit more unique for your smart sneakers than “footware.” Just, you know… do it.

Filed Under: footware, generic, trademark
Companies: nike, puma

Order Demanding Oregon Paper Return Docs A Lawyer Accidentally Gave Them Reversed By Judge

from the gtfooh-with-your-prior-restraint dept

At the end of last month, a federal court judge decided to throw the First Amendment out the window to engage in a bit of the old prior restraint.

At the center of this case (but not the case actually before the judge) was The Oregonian, a newspaper that found itself in possession of documents currently under seal in a long-running discrimination lawsuit against Nike.

A journalist from the Oregonian met with the plaintiffs’ lawyer to discuss the case. This lawyer, Laura Salerno Owens, accidentally sent some documents to the paper that were subject to a protective order. None of that meant anything to The Oregonian, which was not a party to the litigation. It had, at one point, intervened in the case to ask for certain documents to unsealed.

After failing to talk the paper into “returning” the documents, Owens went directly to the court. She was able to secure an order forbidding the publication and demanding the return of the accidentally disclosed documents. The Oregonian was never asked for its input, despite now being treated as subject to protective order that previously had only covered the litigants in this lawsuit.

The order was never published. Instead, The Oregonian was notified via a docket entry by the judge.

ORDER issued by Magistrate Judge Jolie A. Russo: The Court is aware that certain documents marked “Confidential” and “Attorneys’ Eyes Only” have been inadvertently disclosed by plaintiff’s counsel to the Oregonian via e-mail dated January 19, 2024 and that the Oregonian refuses to return the documents. The Oregonian (as party-intervenor Oregonian Media Group) inserted itself as a party-intervenor in this case for the purpose of obtaining disclosure of these and other documents. This Court granted disclosure of the documents at issue on January 5, 2024 (ECF 403 ) which had previously been subject to a protective order. However, the Ninth Circuit stayed the Order pending appeal (ECF 408 ) and the Oregonian is a party to that appeal. Accordingly, the operative protective order requires parties to this litigation to not disclose such inadvertently disclosed documents. (ECF 82 ). Therefore, plaintiff’s motion requesting return of inadvertently disclosed documents and requesting expedited consideration (ECF 410 ), to which defendant joins, is Granted. In order to assure non-disclosure, the Oregonian is Ordered as follows: return the inadvertently disclosed documents by January 31, 2024; agree not to disseminate that information in any way; and to destroy any copies in its possession.

The order (such as it were) made a curious claim: it said The Oregonian was indeed “party to this case” because of its earlier intervention in an unrelated matter. Therefore, the court reasoned, it was also subject to a protective order that previously only covered Nike and the former employees suing it. But if The Oregonian was truly “party to this case,” the judge had the obligation to involve it in the discussion of the demand for the return of the documents. The judge apparently decided this was a matter that could be resolved without the input of both parties involved though, and went right off the constitutional rails.

The Oregonian intervened again, although this time a bit less voluntarily. It filed a motion [PDF] asking for the clearly unconstitutional order to be dissolved, pointing out the obvious flaws in the legal logic used by the judge in their order.

The Magistrate’s Order states that The Oregonian is a “party-intervenor.” The Oregonian objects to this finding as clearly erroneous because the record indicates otherwise. First, The Oregonian is one of several non-party media intervenors who intervened for the limited purpose of moving to unseal judicial records that the press and public have a right to access. Accordingly, as a non-party intervenor, The Oregonian is not subject to the terms of the operative protective order referenced in the Magistrate’s Order, which the Documents are subject to. The Magistrate’s Order directing The Oregonian to destroy and return the inadvertently disclosed documents should be vacated as it is clearly erroneous and contrary to law.

Second, The Magistrate’s Order presents an unconstitutional prior restraint of a publication, outlined in detail below, which is clearly contrary to nearly a century of settled law. This prior restraint is in violation of the First Amendment Freedom of the Press. For this reason alone, the Order should be vacated.

Lastly, the Magistrate’s Order directs The Oregonian to take certain actions and it never had an opportunity to be heard, a quintessential due process violation, and contrary to this nation’s commitment to an ordered scheme of liberty.

So, multiple constitutional violations, all wrapped up in a single docket entry. Fortunately, the judge overseeing the case has now reversed the magistrate’s order, as Matthew Kish reports for The Oregonian.

A federal judge on Tuesday overturned an order that required The Oregonian/OregonLive to return or destroy documents in its possession and refrain from publishing information from them.

U.S. District Judge Marco Hernández ordered U.S. Magistrate Judge Jolie A. Russo to reconsider her ruling, after the news organization argued the order was an unconstitutional form of prior restraint.

The new docket entry says the “status quo” prior to Russo’s order will remain in place until all involved parties (which now includes The Oregonian) have been heard. No more prior restraint. No more document claw back attempts with the force of law behind. And if the plaintiffs’ lawyer wants to talk a judge into reinstating these orders, they’re going to have to work a lot harder (and in an adversarial environment) to convince the federal magistrate that the Constitution should be subservient to their desire to keep things under wraps.

Filed Under: 1st amendment, jolie russo, journalism, laura owens, marco hernandez, prior restraint, protective order
Companies: nike, oregonian

Judge Decides Prior Restraint Is The Best Solution To An Accidental Disclosure Problem

from the First-Amendment,-schmirst-amendment dept

First Amendment principles are nothing new. A ton of precedent has been established that firmly limits what the government can do to stop someone from saying something (and, less often, to force someone to say something). Prior restraint is pretty easy to recognize.

And yet, every so often, a judge decides to rewrite the First Amendment from first principles. It’s a great method for innovation. Not so much for court orders. As much as litigants dread hearing a judge call an argument “novel,” judges should be similarly wary of having one their own described the same way.

Someone screwed up and handed journalists documents that were still under seal in ongoing litigation. That really should only be a problem for the person who handed over the documents. It should have nothing to do with the recipient, especially when it’s clear it was a mistake, rather than an attempt to bypass a court order.

Nonetheless, here we are, as Matthew Kish reports for The Oregonian, which is the current recipient of a blatantly unconstitutional court order.

A federal judge on Friday ordered The Oregonian/OregonLive not to publish information from documents it obtained last week from an attorney in a high-profile sex discrimination lawsuit against Nike and told the news organization to return or destroy the records.

The attorney, Laura Salerno Owens, who represents the plaintiffs in the case, sent a file of documents to a news reporter on Jan. 19. She subsequently asked The Oregonian/OregonLive to return them and the news organization declined.

She filed a sealed motion late Thursday with the court, asking in the title of the motion that “inadvertently disclosed” documents be returned. The Oregonian/OregonLive was not provided a copy of the motion.

As one of the paper’s editors points out, this is some bullshit.

“Prior restraint by government goes against every principle of the free press in this country,” said Therese Bottomly, the editor and vice president of content for The Oregonian/OregonLive. “This is highly unusual, and we will defend our First Amendment rights in court.”

And yet Judge Jolie A Russo does not see it that way. There’s no written order that further explains the judge’s rationale for bypassing the First Amendment. All anyone has at the moment is a lengthy docket entry that says The Oregonian (which is not a party to this litigation) is somehow subject to the court order sealing these documents.

ORDER issued by Magistrate Judge Jolie A. Russo: The Court is aware that certain documents marked “Confidential” and “Attorneys’ Eyes Only” have been inadvertently disclosed by plaintiff’s counsel to the Oregonian via e-mail dated January 19, 2024 and that the Oregonian refuses to return the documents. The Oregonian (as party-intervenor Oregonian Media Group) inserted itself as a party-intervenor in this case for the purpose of obtaining disclosure of these and other documents. This Court granted disclosure of the documents at issue on January 5, 2024 (ECF 403 ) which had previously been subject to a protective order. However, the Ninth Circuit stayed the Order pending appeal (ECF 408 ) and the Oregonian is a party to that appeal. Accordingly, the operative protective order requires parties to this litigation to not disclose such inadvertently disclosed documents. (ECF 82 ). Therefore, plaintiff’s motion requesting return of inadvertently disclosed documents and requesting expedited consideration (ECF 410 ), to which defendant joins, is Granted. In order to assure non-disclosure, the Oregonian is Ordered as follows: return the inadvertently disclosed documents by January 31, 2024; agree not to disseminate that information in any way; and to destroy any copies in its possession.

Now, there’s a bit of text in there that attempts to portray The Oregonian as a party to this litigation because it intervened in the past with its attempts to get various sealed documents unsealed. This does not make The Oregonian a “party” to this litigation. This is still between the original plaintiffs and Nike and that protective order only affects those parties.

If Judge Russo wants to treat The Oregonian as a party to this litigation, then the judge should have had someone from the paper present when they considered the plaintiff’s attempt to obtain an order requiring the return of mistakenly distributed documents. If the paper’s a party, it should have been given a chance to present its counterarguments, rather than just be handed a docket order telling it that (1) it’s a party as far as the judge is concerned for the purposes of this order only, and (2) it needs to comply with a protective order that originally only covered the original set of litigants.

The Oregonian is under no obligation to comply with an unlawful court order. But the downside is that even if it’s unconstitutional, the court can still punish the paper for publishing these documents or simply refusing to give them back. The person who made the inadvertent disclosure faces no legal ramifications for their actions. And rightly so, since this appears to have been an honest mistake.

But the beneficiary of an honest mistake shouldn’t be forced to comply with an order that violates the First Amendment. And yet, the paper is the only entity in this three-way that’s likely to be punished for inadvertently obtaining something it shouldn’t have because a judge clearly didn’t think this thing all the way through before deciding the entity with the strongest claim to First Amendment protections should be the only one subjected to prior restraint.

Filed Under: 1st amendment, jolie russo, journalism, oregon, prior restraint, reporting, sealed documents
Companies: nike, oregonian

Succulent Arrangement TikToker Has 'JustSuccIt' Trademark Application Opposed By Nike

from the succs-to-be-you dept

As you might expect, Nike often finds itself involved in intellectual property stories. To be fair, the company has been on both sides of the IP coin. There are plenty of stories of Nike playing IP bully: the whole Satan Shoes dustup with MSCHF, its lawsuit happy practice when it comes to counterfeits, and so on. But the company has also found itself on the receiving end of IP action, sometimes very much deserved, sometimes not so much.

Among the company’s most guarded IP is the trademark the company has on its famous motto: JUST DO IT. Nike has gone after companies, typically during the trademark application process, whenever there is an attempt to trademark a “Just [word] it” phrase. Most of that action has centered around apparel or athletic companies. But now, a business that produces succulent plant arrangements largely advertised on TikTok has found its trademark application for “JustSuccIt” opposed by Nike.

Andrea Galbreath, the owner of a California-based succulent business, says Nike is opposing the trademark she owns for her company, JustSuccIt. The shoe and athleticwear giant said it opposes her trademark because JustSuccIt could be “damaging to their brand,” according to a TikTok posted by Galbreath on Saturday.

“Nike is comin’ after me!” she says in the TikTok. “I’m just a small business in San Juan Capistrano, trying to plant happiness in the lives of others. So I’m doing my best to get ahead of this. Can you please help me tell Nike to leave me alone?”

Alright, let’s stipulate something: Nike’s slogan “JUST DO IT” is absolutely a famous trademark. That’s important here, because famous marks are afforded way more protection than a standard mark. Because it is a famous mark, and deservedly so, Nike can go beyond the standard likelihood of confusion case for opposing the mark. You will notice that public confusion is not what Nike is complaining about above. Instead, it seems to be going with tarnishment as the reasoning, based on the claim that JustSuccIt would be damaging to its brand.

There is another recognized federal cause of action in the U.S. for famous trademarks known as dilution by tarnishment. This refers to use of a famous trademark in connection with goods or services of poor quality or of an unsavory nature. Dilution can occur even if the two companies are not competitors and there is no likelihood of confusion.

All very true and I suppose Nike’s point here is that “JustSuccIt” sounds phonetically identical to “Just suck it”, which could be construed as unsavory… except that it isn’t in this case. The business sells arrangements made from succulents, a type of plant. I’m not particularly convinced that the first thing that would leap to most people’s minds upon hearing “JustSuccIt” is even Nike’s slogan. It certainly wasn’t mine, though I admit to being wildly unsavory myself.

The product or service in this case is not unsavory. The applied for trademark really isn’t either, though I imagine Nike will play heavily on potential interpretations of it that are of an unsavory nature. Still, that’s a hell of a fairly miniscule reason to oppose the trademark. And, if that’s the approach, it essentially acknowledges that there isn’t any concern about public confusion in the marketplace, nor the two companies competing against one another.

So I guess the open question is whether the USPTO will consider “JustSuccIt” unsavory or not.

Filed Under: andrea galbreath, just do it, justsuccit, plant arrangement, shoes, succulents, trademark
Companies: justsuccit, nike

Nike, USPS Reach A Licensing Deal For USPS-Inspired Sneakers

from the just-license-it dept

What a wild trademark ride for Nike over the past few weeks. You will recall that Nike found itself on our pages after its trademark dispute with MSCHF over the so-called “Satan Shoes” being pushed by Lil Nas X. What had all the makings of a very interesting case that would have involved questions about resale rights, free speech, and property rights instead ended in a mostly meaningless settlement that saw MSCHF agreeing to offer to buy back shoes that are now wildly famous and valuable and will almost certainly never be bought back. Almost immediately afterwards, interestingly, Nike found itself on the flip side of the trademark coin with the United States Postal Service, after Nike produced an experimental Air Force 1 sneaker that was clearly inspired by the postal service.

Now, while saying that these shoes were clearly inspired by the USPS would be an understatement, here again we have a situation where a trial could cover all sorts of interesting ground. Would the public be confused by any of this? C’mon now. Does Nike’s homage to the USPS somehow diminish the USPOS brand? If anything, I would think the opposite effect would be on the table. When is the last time anyone before Nike considered the postal service cool enough to be honored with a sneaker produced by one of, if not the, most famous athletic apparel and shoe manufacturers on the planet? And, ultimately, what actual harm would be done to the USPS or its trademark rights by Nike’s actions?

Sadly, we’ll never get answers to those questions as Nike has decided to abide by its stance against MSCHF and instead settle the dispute by entering a licensing agreement with the USPS.

The all-white Experimental Nike Air Force 1 footwear are now officially licensed by the USPS, according to a USPS release that was issued by a Nike spokeswoman. The statement also noted, “Any early images of this shoe were not authorized to be released by Nike.”

A spokeswoman for the USPS did not respond immediately for a request for comment about the financial terms of the deal.

So, on the one hand, fine, Nike finally lived up to the same standards it laid out in the MSCHF dispute when it was the complaining party. On the other hand, a settlement like this only perpetuates the permission culture the far too often plagues the realm of intellectual property generally and trademark particularly.

Wouldn’t it have been better for the USPS to simply accept the honor of the homage and get back to the business of delivering mail and spying on all of us?

Filed Under: sneakers, trademark, usps
Companies: nike

Flip-Flop: Nike Now On The Receiving End Of Trademark Threat Over USPS Inspired Sneakers

from the die-by-the-sword dept

Nike finds itself on our pages again. We’re fresh off of the settlement Nike reached with MSCHF over the Lil Nas X “Satan shoes”. That settlement sees MSCHF agreeing to buy back at retail prices 666 modified Nike Air Max 97s after Nike sued over trademark. It could have been an interesting case, bringing in all kinds of questions about resale rights, the First Amendment, ownership of property, and more. Instead, it all ends with a posturing settlement that achieves nearly nothing, since these fought-over shoes have suddenly been moonshot into an even more rare and valuable item than they already were. But, Nike gets its ounce of litigation blood and gets to pretend this is all somehow a victory.

And perhaps that settlement will be referenced in another trademark dispute that seems to be brewing between the United States Postal Service and Nike, with Nike this time on the receiving end of the threats.

In an ironic twist, the sneaker giant is being taken to task by the United States Postal Service over an upcoming postal service-inspired sneaker reportedly being planned by Nike. The USPS’s challenge, the latest in a string of public relations headaches for the top athletic brand, all but guarantees the company will end up in court once again — but with the shoe on the other foot.

According to a USPS statement provided to Yahoo Finance, Nike’s experimental Air Force 1 sneaker “is neither licensed nor otherwise authorized by the U.S. Postal Service This is an unfortunate situation where a large brand such as Nike, which aggressively protects its intellectual property, has chosen to leverage another brand for its gain.”

Now, perhaps you’re wondering just how much borrowing Nike is doing here. Well…

So, yes, the imagery of this entire sneaker is very clearly an homage to the USPS iconography and dress. Due to that, the USPS statement also noted ominously that it will do everything necessary to protect its “IP rights”.

It’s worth noting that I don’t think this sort of thing represents trademark infringement necessarily. The chief questions in these cases are, first, will the public be confused into thinking there is some kind of official association at play here and, second, does the use in question dilute the brand. I would argue that nobody is going to think that the USPS is somehow now in the sneaker business and, because of that, nobody is going to think less or differently of the federal mail system by this use.

But, on the other hand, those are the same arguments made by those of us who pushed back on Nike’s suit against MSCHF.

According to Christopher Buccafusco, a legal expert at the Cardozo Law School in New York City, Nike might find itself on far more shaky ground than when a judge ruled relatively swiftly in its favor.

“Nike’s claims to doing this without a license are much weaker than MSCHF,” he told Yahoo Finance. The latter “is engaged in a pretty obvious set of criticism and comments on Nike and Nike’s role in corporate culture. All of the sorts of things that we think fair use are there to protect,” he explained.

Yet Nike “is not doing any of that. [It’s just saying] that’s a cool logo that USPS uses, we want to use your cool logo. It’s not a commentary on USPS,” Buccafusco added. “Nike is not engaged in a first sale. It’s not like Nike bought USPS logos and stuck them on their shoes. They created a logo that was like the USPS logo because it kind of looks cool to them,” he said.

Note here as well that Buccafusco, despite the above, went on to state that he does not think Nike should lose this case if it does in fact go to court.

But, you know, live by the sword and die by the sword and all that. Given the recent lawsuit and settlement reached, it strains the mind to see how in the world Nike plans to articulate a coherent defense for itself in this case.

Filed Under: postal service sneakers, shoes, sneakers, trademark, usps
Companies: nike

MSCHF Settles Upgraded Shoe Dispute With Nike And Promises (Wink, Wink) To Buy Back Satan Shoes

from the good-luck-getting-those-shoes-back dept

There were actually a whole bunch of interesting legal questions raised by Nike’s trademark lawsuit against MSCHF the weird “structured chaos” organization that seems to basically sell publicity stunts as a business model. It had teamed up with the musician Lil Nas X to sell 666 pairs of upgrade Nike Air Max 97, complete with red ink (and, it claimed, a single drop of blood) inserted in the sole of the shoe. The lawsuit raised issues regarding first sale/resale rights, art, freedom of expression, trademark, ownership, property, dilution, confusion and more. And… all of it’s going nowhere, because a settlement has been reached.

This isn’t that much of a surprise. MSCHF execs have admitted in the past that lawsuits only raise their profile, which may be true, but they’re also crazy fucking expensive. MSCHF already got the benefit of the publicity bump from the lawsuit, and now probably sought to get things done and over with as quickly as possible — and that includes agreeing to issue a “voluntary recall” of the shoes — 665 pairs of which it had already shipped out. MSCHF also agreed to do the same thing for the much smaller number of Jesus shoes it had sold two years ago in a similar stunt.

Of course, the whole thing seems like a charade. It’s a voluntary recall, in which MSCHF is supposed to buy back the shoes at their original retail prices “in order to remove them from circulation.” But, uh, anyone who has those shoes in their possession now knows that these shoes are way more valuable because of this dispute. I’d be amazed if anyone actually agreed to sell the shoes back to MSCHF, because these shoes just went from already established rare collector’s items, to rare collector’s items with an even more insane story including the fact that Nike wants them to disappear.

In some ways, this form of settlement just shows how ridiculous the lawsuit was in the first place. Nike’s statement on the settlement is hilarious:

?As part of the settlement, Nike has asked MSCHF, and MSCHF has agreed, to initiate a voluntary recall to buy back any Satan Shoes and Jesus Shoes for their original retail prices, in order to remove them from circulation. If any purchasers were confused, or if they otherwise want to return their shoes, they may do so for a full refund. Purchasers who choose not to return their shoes and later encounter a product issue, defect, or health concern should contact MSCHF, not Nike.?

I mean, c’mon. No one who bought this shoe was “confused.” No one’s going to want to return it. And, no one’s going to contact Nike about any “defect” or “health concern.” The whole thing is silly. And yes, that’s even though there were some foolish pundits on certain infamous news channels who tried to make a culture war issue falsely claiming Nike was making these shoes. So, sure, Nike can point to the lawsuit as proof they had nothing to do with the shoes, but responding to the brigade of trumped up controversial people is lame. Pretty much everything about this story has been about posturing, rather than anything substantive.

Filed Under: art, confusion, dilution, first sale, free speech, jesus shoes, lil nas x, satan shoes, tarnishment, trademark
Companies: mschf, nike

Nike Sues MSCHF Over Its High Profile Satan Shoes, Claiming Unsafe Blood May Dilute The Exalted Nike Swoosh

from the 1st-sale-and-dilution dept

Well, here’s a fun one. Over the weekend, the musician Lil Nas X announced that, along with MSCHF, he was selling “Satan Shoes.” From the beginning this was all just a silly publicity stunt that more or less played out probably exactly as those involved expected. If you don’t know what MSCHF is then it’s worth reading up on the organization that claims it’s based on “structured chaos” and only ever so often randomly drops some kind of offering for sale, usually in limited quantities that get lots of attention and sell out quickly. As was summarized in a Business Insider article about MSCHF last year:

There’s no apparent thread connecting MSCHF’s slew of projects: The team has built a browser add-on that disguises your Netflix watching as a conference call, designed a squeaking rubber chicken bong for smoking weed, and created a YouTube channel solely consisting of videos of a man eating everything from a tub of mayonnaise to a photo of Pete Davidson. But for Whaley, the lack of continuity is the point: As long as the team can figure out the resources to create and launch a product, “nothing is safe.”

“Our perspective is everything is funny in a nihilistic sort of way,” Whaley said. “We’re not here to make the world a better place. We’re making light of how much everything sucks.”

The company originally got the most attention for another pair of shoes — the “Jesus shoes.” That involved a modified Nike Air Max 97 with — they claimed — holy water injected into the soles of the shoe. The Satan shoe is a somewhat obvious follow up to the Jesus shoe. This time, 666 pairs of the shoe were made, also upcycled Nike Air Max 97s. Rather than having “holy water” injected into the soles, this one included red ink, with a promise of a single drop of blood (whose blood is never stated), and then some red stitching and embellishments on the shoes.

A whole bunch of people idiotically freaked out about this, like we were back in the Satanic Panic from the 1980s. Even worse, though the whole thing was (1) clearly a stunt and (2) obviously not endorsed by Nike, the usual brigade of pearl clutching culture warriors immediately insisted that Nike was behind the whole thing, and being a culture warrior seems to have more power when you can blame a company for it. Nike was quick to point out that it had nothing to do with all of this, but by Monday the company decided to sue MSCHF over the shoe, making a variety of trademark infringement claims. The lawsuit gives us excellent images such as this one:

Obviously, if you buy a pair of Nikes, you can resell them. And there is the concept of the first sale doctrine that allows you to resell goods that you bought that are protected by copyright or trademark laws. However, as law professor Alexandra Roberts notes in a detailed Twitter thread, 1st sale does not apply to “materially altered” products. Of course, that doesn’t mean that Nike will win either. You can argue over whether or not these shoes are actually “materially” altered, or just cosmetically so. Nike includes the ink/blood in the sole as evidence that the alterations are material:

The material alterations include at least referring to the shoe as the Satan Shoe, adding red ink and human blood to the midsole, adding red embroidered satanic-themed detailing, adding a bronze pentagram to the laces, and adding a new sock liner.

Frankly, this feels… pretty weak. There are examples of artists taking others’ products — even those protected by trademark — and altering them for artistic purposes.

Much of the trademark claims rely not so much on the likelihood of confusion regarding the origin of the shoes, but rather on dilution — including both blurring and tarnishment. We’ve argued in the past that it’s insane that dilution and tarnishment are a part of trademark law, as they appear to be complete bastardizations of the purpose and intent of trademark. Trademark law — unlike copyright and patent law — is really supposed to be about consumer protection. It’s supposed to be so that users aren’t buying a product they believe is made by this reputable entity, only to be tricked as it was actually built by that unreputable entity. It was only more recently — through a concerted effort by trademark lawyers who sought to cast trademarks as “property” and put them next to copyrights and patents — that the law morphed into something that included “tarnishment” and “dilution.”

But… those do exist, and will be a key part of the lawsuit if it moves forward and is not settled quickly (as may well happen).

MSCHF?s use of the Nike Asserted Marks and/or confusingly similar marks has caused, continues to cause, and/or is likely to cause irreparable injury to and dilution of the distinctive quality of the Nike Asserted Marks in violation of Nike?s rights under 15 U.S.C. ? 1125(c). MSCHF?s wrongful use of the Nike Asserted Marks is likely to cause dilution by blurring and the whittling away of the distinctiveness and fame of the Nike Asserted Marks. In addition, MSCHF?s wrongful use of the Nike Asserted Marks in connection with satanic imagery is likely to cause dilution by tarnishment.

I am hard pressed to see how this shoe would “whittle” away at the distinctiveness of Nike’s brand, but trademark law can be pretty silly sometimes. Nike also does claim that there is confusion and highlights a bunch of social media posts from very, very stupid people who actually believe the shoe comes from Nike itself.

Of course, there’s a decent likelihood that MSCHF is loving every minute of this. The company has said in the past that a lawsuit would “help increase the value” of the products it releases.

Meanwhile, the Fashion Law blog has a detailed analysis of the legal issues here (written before the lawsuit was filed) that also notes that 1st sale might not apply here, given the alterations. However, it also highlights that it could make a fair use claim in response:

On the other hand, given the lengths to which MSCHF routinely goes to build a narrative around its individual drops (all of which are relatively limited in quantity), there is a chance that a fair use claim ? satire, maybe? ? might serve to shield it from liability for making use of the Nike logo in the process.

Lots of interesting legal questions here — but on the whole, the entire thing just seems so… freaking… pointless. The shoes are clearly a publicity stunt. A bunch of people fell for it, and now Nike is playing into it with a lawsuit.

It’s just a silly pair of shoes, people.

Filed Under: blood, confusion, dilution, drop, lil nas x, publicity stunt, satan shoes, shoes, swoosh, tarnishment, trademark
Companies: mschf, nike

Esports March On: Nike Jumps In With Glitzy Ad While Forbes Ponders If Esports Will Be Our New Pastime

from the game-on dept

Esports continues to march down the path toward greater adoption. As we’ve detailed over many posts, esports had already become a cultural thing heading into 2020. But if anyone expected a regression back to IRL sports, the COVID-19 pandemic essentially cemented the cultural adoption of competitive video gaming. With even greater adoption by IRL professional sports leagues, and with many widely used social media platforms getting in the game and accelerating all of this, esports have continued to hit impressive milemarkers that showcase just how big this is all becoming.

It’s not slowing down. Signs of that acceleration can be seen first in a glitzy advertisement Nike has put out as it too jumps further into esports gaming.

The shoemaker has released its first-ever esports ad, coming out of Nike Greater China, showcasing how these esports athletes get their minds and bodies prepared for the challenge.

The ad shows gaming superstar Uzi – who was recently the first esports athlete to be signed by Nike – completely a rigorous (and highly entertaining) training camp. According to Nike, the ad is a reminder for these gamers to remain active and healthy in order to stay on top of the challenges of gaming – which can see top players putting in 16-hour days six days a week.

Nike jumping into this is no small thing. And, while this is an ad for the Chinese marketplace, it would be quite surprising given esports’ trajectory if we didn’t see this sort of thing in the West before long.

Along those lines, Forbes has also come out with an article asking if esports will soon be America’s chief pastime.

Compared to America’s most popular pro sports, football, basketball and baseball, Esports is small, but it now ranks with popular sports entertainment like wrestling. In 2019, according to esportsobserver.com, over 211Mwasawardedfromover4,000Esportstournaments,anincreaseof29211M was awarded from over 4,000 Esports tournaments, an increase of 29% from 2018’s 211Mwasawardedfromover4,000Esportstournaments,anincreaseof29163M prize pool.

…

Gaming is universal. The rules of the games are simple. It is simply the essence of competition. When produced for television, broadcasters can support the action with commentary, stating objectives for the game on-screen. Like golf, knowledge of the games might not be necessary at all as a games player base might be large enough to sustain eSports broadcasts, making non-player spectators a bonus, learning rules as they watch. Segments can support rules and strategies and highlights.

Will esports reach the vaunted levels for America’s attention that baseball, basketball, and football have achieved? It’s certainly on that trajectory. And the fact that publications like Forbes are even asking this question of a sport that has existed widely for less than two decades is telling. What esports really has to avoid is becoming the new World Series of Poker, where the fad fizzled out after a few years and is now relegated to niche status, albeit still popular.

But as the post points out, gaming is becoming universal. It’s already overtaken other forms of entertainment as the dominant force among young people. Why that wouldn’t translate into even further spectatorship of esports tournaments, now propelled by major brands and funding, is a question I cannot answer.

Filed Under: covid-19, culture, esports, pandemic, pastimes, sports
Companies: nike