When Satan Met The Swoosh

Nike did not take the news of its brand association with Satan and human blood sacrifice well.

The early frontrunner for IP case of the year is on the books and in the news. Just about a week old, the case already involves one of the world’s biggest consumer products companies, two high-powered, old-guard New York City Biglaw firms, a world-famous hip-hop artist, and everyone’s favorite villain, Lucifer (aka Satan). Quite a mix — and it is no surprise that the dispute almost immediately captured headlines in both the mainstream and IP media.

For those who haven’t heard by now, America’s leading sneaker company, Nike, was forced to obtain a temporary restraining order against a New York City-based design studio (or in the words of their counsel an “art collective”) called MSCHF. Why? Because MSCHF had followed up on its October 2019 release of the “Jesus Shoe” (repurposed Nike Air Max’s that are allegedly now displayed as works of art in museums, or available for just $3,000 at one reseller) with the less-welcome sequel — at least in Nike’s eyes — the “Satan Shoe,” of which 666 pairs were released in a collaboration with Lil Nas X. As can be imagined, the Satan Shoe drop saw all but one (withheld for a giveaway) of the pairs sell out in a minute, despite their more than $1,000 per pair price tag.

About those Satan Shoes. Like the Jesus Shoes — which were white and teal Air Max’s — the Satan Shoes are basically red and black Nike Air Max’s with a couple of modifications. For one, the sneakers are emblazoned with a verse from Luke referencing Satan, as well as a bronze pentagram for those who enjoy a little laces decoration on their kicks. The topper is a drop of human blood in the sole, which makes for good copy in newspaper articles about the shoes at a minimum.

Introduced by Lil Nas X in conjunction with his release of his latest music video, in the words of MSCHF (at least as presented by their lawyers at Debevoise) the shoes are “works of art that are sold to collectors” and are “intended to criticize the ever-popular ‘collab culture,’ where brands like Nike collaborate with anyone willing, to make a splash.” Putting aside the fact that Nike has never invited me to collaborate on an IP litigator’s sneaker, it is apparently also important to note that not only do the sneakers parody collab culture — they also do much more. In fact, they are apparently instruments of anti-religious rebellion against “religious norms that marginalize certain groups of people.” Art with a heavy message, in other words. As opposed to the typical example of collab culture, where famous designer X designs and sells overpriced sweatpants and T-shirts at Target.

Unsurprisingly, Nike did not take the news of its brand association with Satan and human blood sacrifice well. Pointing out that its “iconic” trademark swoosh symbol was prominently displayed on the sneakers held up by Lil Nas X in the release poster, Nike filed claims for trademark infringement and dilution, as part of a lawsuit filed in the Eastern District of New York. Arguing that even “sophisticated sneakerheads” were confused as to whether the Satan Shoes originated with Nike itself, Nike further pointed that certain customers had taken to social media with promises never to patronize Nike products again. In case anyone needed proof, it seems clear at least some Americans have reservations about doing business with Satan-supporting sneaker purveyors. In any event, even though all the Satan Shoes (but the one held back for the giveaway) were apparently shipped out the day Nike filed its action, Nike still wanted the TRO.

Thankfully for Nike, the court agreed that it was entitled to a TRO. For a top-quality analysis of the legal issues involved, I commend @lexlanham’s (UNH’s Alexandra Roberts) Twitter threads on the case, including her entertaining blow-by-blow review of Nike’s complaint. As we all know, however, the grant of a TRO is not an indication that Nike will ultimately prevail on the merits, particularly in a case like this one, which pits one of the world’s most famous marks against a credible argument that the use of the mark was incidental to the greater public interest in protecting First Amendment expression and artistic endeavor. At the same time, MSCHF could have probably taken some steps to distance itself from creating a commercial impression that this was a Nike-sanctioned satanic collaboration, perhaps by covering up the swooshes on the sneakers it modified, or by including clear disclaimer language disavowing any Nike involvement with this arts and crafts project. Whether those steps would be legally sufficient to avoid an infringement or dilution finding is debatable; but such steps would likely have at least abated, if not avoided, the purported harm to Nike from customers thinking that Satan was Nike’s newest celebrity endorser.

Ultimately, other than exponentially increasing the visibility and resale value of the Satan Shoes, it is hard to see much for Nike to gain for itself in this situation. As with the Kawhi Leonard IP dispute, companies like Nike find themselves in a difficult place when it comes to balancing their obligation to police their trademarks with the commercial need not to take themselves too seriously. That tension is heightened when celebrities are involved, especially for a company like Nike whose success was built on its embrace of celebrity culture, particularly with respect to sports legends like Tiger Woods, Michael Jordan, and Lebron James, among many, many others. Eventually, of course, the furor over the Satan Shoes will subside. But for trademark lawyers, the memory of the Satan Shoes will linger for a long time. Because when Satan met the Swoosh, everyone had to take notice.

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Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.


Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

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