Sneaker Brand Files Counterclaims Against Nike’s Trademark Infringement Lawsuit

A sneaker brand that recently landed on the recieveing end of a Nike-initiated trademark infringement and dilution lawsuit is pushing back against the sportswear behemoth by way of a newly filed answer and counterclaims. In its February 13 filing, By Kiy denies the bulk of Nike’s claims, asserting that, among other things, it has not infringed Nike’s Air Jordan 1 and Dunk trade dress by making and selling its own footwear offerings, including the “Air Kiy” and “Air Reves,” and “Air Omi” styles, which Nike alleged in its November 2022 complaint are “near-verbatim replicas” of its famed footwear and have “led to initial interest confusion, post-sale confusion, and confusion [among consumers] in the secondary market.” 

In response to Nike’s claims, including that the two companies’ sneakers “travel in identical channels of trade and are sold to identical consumers,” who are “likely to believe that [By Kiy’s] infringing products are associated with and/or approved by Nike, when they are not,” By Kiy asserts that there is “no credible argument that there is any confusion in the marketplace about By Kiy’s shoes – they are known to be By Kiys and to not be Nikes.” Specifically, the New Jersey-based defendant contends that its shoes are: (1) “a different type of product than the athletic shoes Nike sells … more a form of commercial art than shoes to be used for basketball and other sports;” (2) “much more expensive than a typical Nike shoe; and (3) sold through “completely different channels of commerce than Nike’s shoes, including By Kiy-branded pop-up stores … and through a By Kiy-branded ‘drop app.’” 

“There is no conceivable way that any reasonable consumer would think he or she is buying a Nike product when the consumer buys a By Kiy product, whether in the primary or secondary sales markets,” the company states, noting that all of its offerings are “prominently emblazoned with By Kiy’s name and distinctive ‘Lighting Bolt’ design.” (By Kiy goes further here, saying that its brand is “famous in its own right”and the lighting bolt logo is “distinctive in its own right.”)

Read the source article at thefashionlaw.com