Nike, Inc. (“Nike”) recently filed a lawsuit against MSCHF Product Studio, Inc. (“MSCHF”), the manufacturer of the Satan Shoes designed by rapper Lil Nas X. The shoes seemed to use the Nike Air Max 97 shoe as inspiration. The shoes, shown below in comparison with the Nike Air Max 97, caused quite a buying frenzy.
A 666 pair run sold out on the day of the launch. The black shoes hold red ink and a drop of human blood in the midsole. The shoes feature a pentagram pendant, pentagram designs on the heel and an inverted cross on the tongue. They also feature a reference to a Bible verse about Satan’s fall from heaven. All of these design elements support a reference to Satan, hence the name Satan Shoes.
Nike filed a complaint with the US District Court alleging trademark infringement and dilution. MSCHF purchased the shoes from Nike and made the aforementioned alterations to the shoes. However, the Nike swoosh trademark is still prominently displayed on the shoes.
Nike notes in the complaint that it does not approve of or authorize the Satan Shoes. Nike notes it suffered significant harm to its goodwill in the short time since the Satan Shoes release. They provide evidence of significant confusion and dilution in the marketplace among consumers who think Nike is manufacturing or endorsing the shoes.
The Nike Swoosh is considered a famous mark. Famous marks enjoy a broader scope of protection than non-famous marks. In determining fame, one must consider the inherent strength based on the mark itself as well as its commercial strength based on marketplace recognition. Commercial strength can be measured indirectly by sales volume; advertising expenditures; length of use of the mark; widespread critical assessments; notice by independent sources of the goods or services identified in the mark; and general reputation of the goods or services.
Nike asked for injunctive relief as well as damages, attorney’s fees and costs. Given the strength of Nike’s mark and the evidence of actual confusion in the marketplace, they have a strong case trademark infringement case against MSCHF.