Hellish Sole: Nike wins lawsuit over ‘Satan shoes’

April 27, 2021

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3 min read

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What's going on here?

Nike has won a lawsuit to prevent ‘Satan’ customised Air Max shoes from being sold

What does this mean?

Brand MSCHF dropped 666 pairs of black and red customised Nike Air Max shoes on Monday 29 March 2021. Each shoe had Nike’s signature air bubble but were customised to contain human blood donated by members of the MSCHF art collective, as well as a pentagram and inverted cross. 

It soon became clear that the collection had not been approved by Nike as the sports brand filed a lawsuit in order to stop the sale of the shoes. Nike claimed that MSCHFs unauthorised use of the Nike trademark “Swoosh” was likely to cause confusion and created a false association between MSCHF’s products and Nike. 

The US federal judge, citing that there was already evidence of confusion and illusion, including calls to boycott Nike over the shoes, found in favour of Nike and issued a temporary restraining order preventing the further sale of the shoes. However, given that all but one pair of shoes had already been sold, it is uncertain whether it will have any impact

What's the big picture effect?

The case highlights the importance of public perception when it comes to trademark law. Two years ago MSCHF created a similar shoe, that time depicting Jesus and containing holy water instead of blood in the sole. The shoes were also not approved or authorised by Nike, but no lawsuit was filed. Since both customised shoes had not been approved by Nike, what is the difference between them? The answer to that may be in consumer confusion and negative perception. Holy water does not appear to have a lot of haters, whereas Satan apparently does – the Satan shoes release saw a backlash against Nike across social media with people calling for a boycott of the sports giant. The large amount of publicity generated confusion regarding the shoe’s origin; people thought that Nike had approved the design. Nike was seen in a negative light as a result, and the brand sought to protect its image by publicly distancing itself from the design and by filing the lawsuit. 

While Nike was well within their rights to do this, this carries implications for the custom industry. The customisation industry is a big market, with sales at an all-time high. It is not surprising given the unique designs often created. MSCHF has said that it has used the Nike Air Max only as a material or a canvas for its artwork (i.e. the Satan shoe). MSCHF describes itself as a “conceptual art collective” and insists that the shoes are art “created for people to observe, speculate on, purchase and own”. Brands like Nike however, seek to prevent others from making money off their designs and trademarks. So there is no surprise that Nike has rejected MSCHF’s claim of art, pointing out that MSCHF did not create a single shoe that would sit in a museum, but instead created hundreds of shoes for sale to the public. 

MSCHF has previously escaped similar liability by citing the First Sale Doctrine, which protects the resale of goods that are protected by intellectual property laws – for example, the resale of old clothes/shoes/bags on websites like Depop, and by claiming the customised products are protected as a “parody”. This tactic may not however stand up when pitted against a brand the size of Nike and could set a precedent for other brands facing unfavourable customisation pieces.  

The impact of this decision is that it prevents companies and individuals from committing trademark infringement under the guise of “art”, this may destroy the customisation industry. It is clear that there is a balance to be found, but it is not clear whether we have found that balance yet. 

Report written by a LittleLaw Reporter

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