Flip-Flop: Nike Now On The Receiving End Of Trademark Threat Over USPS Inspired Sneakers
from the die-by-the-sword dept
Nike finds itself on our pages again. We’re fresh off of the settlement Nike reached with MSCHF over the Lil Nas X “Satan shoes”. That settlement sees MSCHF agreeing to buy back at retail prices 666 modified Nike Air Max 97s after Nike sued over trademark. It could have been an interesting case, bringing in all kinds of questions about resale rights, the First Amendment, ownership of property, and more. Instead, it all ends with a posturing settlement that achieves nearly nothing, since these fought-over shoes have suddenly been moonshot into an even more rare and valuable item than they already were. But, Nike gets its ounce of litigation blood and gets to pretend this is all somehow a victory.
And perhaps that settlement will be referenced in another trademark dispute that seems to be brewing between the United States Postal Service and Nike, with Nike this time on the receiving end of the threats.
In an ironic twist, the sneaker giant is being taken to task by the United States Postal Service over an upcoming postal service-inspired sneaker reportedly being planned by Nike. The USPS’s challenge, the latest in a string of public relations headaches for the top athletic brand, all but guarantees the company will end up in court once again — but with the shoe on the other foot.
According to a USPS statement provided to Yahoo Finance, Nike’s experimental Air Force 1 sneaker “is neither licensed nor otherwise authorized by the U.S. Postal Service This is an unfortunate situation where a large brand such as Nike, which aggressively protects its intellectual property, has chosen to leverage another brand for its gain.”
Now, perhaps you’re wondering just how much borrowing Nike is doing here. Well…
So, yes, the imagery of this entire sneaker is very clearly an homage to the USPS iconography and dress. Due to that, the USPS statement also noted ominously that it will do everything necessary to protect its “IP rights”.
It’s worth noting that I don’t think this sort of thing represents trademark infringement necessarily. The chief questions in these cases are, first, will the public be confused into thinking there is some kind of official association at play here and, second, does the use in question dilute the brand. I would argue that nobody is going to think that the USPS is somehow now in the sneaker business and, because of that, nobody is going to think less or differently of the federal mail system by this use.
But, on the other hand, those are the same arguments made by those of us who pushed back on Nike’s suit against MSCHF.
According to Christopher Buccafusco, a legal expert at the Cardozo Law School in New York City, Nike might find itself on far more shaky ground than when a judge ruled relatively swiftly in its favor.
“Nike’s claims to doing this without a license are much weaker than MSCHF,” he told Yahoo Finance. The latter “is engaged in a pretty obvious set of criticism and comments on Nike and Nike’s role in corporate culture. All of the sorts of things that we think fair use are there to protect,” he explained.
Yet Nike “is not doing any of that. [It’s just saying] that’s a cool logo that USPS uses, we want to use your cool logo. It’s not a commentary on USPS,” Buccafusco added. “Nike is not engaged in a first sale. It’s not like Nike bought USPS logos and stuck them on their shoes. They created a logo that was like the USPS logo because it kind of looks cool to them,” he said.
Note here as well that Buccafusco, despite the above, went on to state that he does not think Nike should lose this case if it does in fact go to court.
But, you know, live by the sword and die by the sword and all that. Given the recent lawsuit and settlement reached, it strains the mind to see how in the world Nike plans to articulate a coherent defense for itself in this case.