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Hannah Balameh

Solicitor - Brighton & Hove

13th April 2021

Trademark Infringement: Nike v MSCHF – “Satan Shoes”

In a recent case Nike submitted a petition in the Eastern District of New York requesting a jury trial for the unauthorised (trademark infringement) use of their Nike Air Max 97 shoes by MSCHF Product Studio, Inc (“MSCHF”) for their “Satan Shoes”.

Trademark Infringement Background

Brooklyn art collective MSCHF created 666 pairs of customized Nike Air Max 97 shoes made in collaboration with the rapper Lil Nas X called “Satan Shoes” (see picture below for a screenshot as featured in the Nike petition)

Trademark Infringement

(Left: Nike Air Max 97 Shoe.  Right: MSCHF “Satan Shoe”)

According to the petition, the Nike Air Max 97 were altered by adding the following:

  • red ink to the sole with a drop of human blood
  • red embroidered “satanic themed detailing”
  • a bronze pentagram to the laces
  • a new sock liner.

Nike Claim: Trademark infringement and Unfair Competition (and other claims)

Amongst other claims, Nike has put forward a claim of trademark infringement and unfair competition.

Nike holds a plethora of registered trademarks on the Principal Register of the U.S. Patent and Trademark Office both in the word mark NIKE for a variety of goods and services and various Swoosh designs.

Nike argued that MSCHF knowingly used their trademarks, without permission, in order to sell products which created a likelihood of confusion.  Nike provided screenshots of various customers criticising them for the “Satan Shoes” in which they believed Nike had collaborated.

MSCHF’s Response

In their response, MSCHF argued that there is “no imminent or immediate threat of irreparable harm” because all but one of the pair of shoes had already been shipped and sold.

They further argued that Nike had presented no evidence of confusion by purchasers who according to them are sophisticated enough to be “well aware of MSCHF’s approach to art including its customization of consumer products as part of its expressive message”.  They further stated that whilst some had mistaken the art project as being sanctioned by Nike and have made criticisms, this is what happened previously after the introduction of the “Jesus Shoes” nearly 18 months earlier but Nike never objected to that project.

They also noted that these shoes are “intended to criticize social norms that discriminate, such as religious norms that marginalise certain groups of people.  Lil Nas X, a gay Black artist who has publicly discussed how he spent his teenage years hating himself because of what Christianity taught about homosexuality, and whose most recent video prominently features Satan, is thus the perfect collaborator for these shoes”.

Outcome

Whilst the Court ordered a temporary injunction in favour of Nike on 1 April 2021, the parties have since settled and MSCHF will offer full refunds to customers in order to remove the shoes from circulation.  Other provisions of the settlement have not been released.

Contact our dispute resolution lawyers in Brighton & Hove, Uckfield, Sevenoaks and Ashford

If you require any assistance with either commencing an action for trademark infringement, passing off or defending against a claim thereof, please contact Hannah Balameh of our Dispute Resolution Hove team at hannahbalameh@rixandkay.co.uk or 01273 239797.

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