Big Law

Nike Sues Apparel Company for Allegedly Copying Trademark Sneaker Design

Nike filed what is sure to be a closely followed case on Wednesday, naming USAPE LLC – the footwear company that does business as BAPE – in a trademark infringement and dilution lawsuit. In the complaint that it lodged with the U.S. District Court for the Southern District of New York, Nike asserts that it has spent decades building robust rights and corresponding goodwill in “some of the world’s most valuable trademarks,” and has “a legal obligation to stop copyists when their infringements pose a significant danger to [its] rights.” One such copyist, according to Nike, is BAPE, whose “current footwear business revolves around copying Nike’s iconic designs” and whose infringements have “recently grown to become a significant danger to Nike’s rights.” 

Setting the stage in the newly filed complaint, Nike alleges that since the 1980s, it has “continuously and substantially exclusively used, promoted, and sold sneakers” bearing the Dunk, Air Force 1, and Air Jordan 1 trade dress. As a result of its “continuous and long-standing promotion” of these sneakers, Nike asserts that it has generated substantial sales – it has sold “hundreds of millions of Air Force 1s,” alone, in the U.S, accounting for “billions of dollars in revenue,” and consumers have come to recognize products bearing Nike’s trademarks as coming from Nike or otherwise being authorized by Nike and thus, the company has developed “powerful trademark rights.”

Against this background, the Beaverton, Oregon-based sportswear titan claims that BAPE “introduced its first infringing footwear in the United States in 2005.” Seemingly looking to get ahead of the inevitable claims that BAPE’s counsel will make that Nike waited too long to take action and thus, is subject to various defenses, including laches, acquiescence, estoppel, etc., Nike argues that for the majority of that time, BAPE’s infringement was “de minimis and inconsistent,” and thus, did not warrant legal action. (You will recall that the 10-year-plus lag between when adidas became – or reasonably should have been – aware of Thom Browne’s use of a 4-stripe mark and when it actually filed a trademark suit against Thom Browne over such use was a key argument made by Browne’s counsel leading up to and during the parties’ recent trial).

Read the source at thefashionlaw.com

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