Nike is cracking down on customization businesses that revolve around the footwear maker’s products.
In a lawsuit filed in a federal court in California on July 19, Nike alleged that Customs By Ilene, Inc., or popular sneaker customizing business Drip Creationz, was responsible for trademark infringement and dilution of its products as well as selling counterfeit shoes that claim to be Nike products.
The Fashion Law first reported on the lawsuit that touches on two areas of Drip Creationz’s business. The complaint alleges that Drip has been selling counterfeit Nike products, namely Air Force 1 style shoes.
In addition to the counterfeit claims, the complaint also touches on Drip’s “‘customizations’ of Nike’s iconic products that have been materially altered in ways Nike has never approved or authorized.” In this case, customization refers to the practice of purchasing, redesigning and reselling Nike shoes that “include images, materials, stitching and/or colorways that are not and have never been approved, authorized or offered by Nike.”
Just days later, Nike filed a complaint against a former employee that alleged trademark infringement and dilution, The Fashion Law reported.
These lawsuits comes on the heels of a March trademark infringement lawsuit Nike filed against MSCHF, the company that created and sold a number of “Satan Shoes” in collaboration with Lil Nas X in March. The sneakers were based off the Nike Air Max 97 and ultimately recalled by MSCHF after a settlement agreement was reached in April.
According to Jared Goldstein, a lawyer and co-author of the book Sneaker Law, Nike has the right to protect its intellectual property in this way. While the concept of a first sale doctrine makes reselling sneakers legal, reselling altered or customized shoes is not technically protected if the product is materially different from how it was originally purchased.
“Once you create intellectual property, it is equally important to protect your intellectual property and this is what Nike is attempting to do,” Goldstein said. “Nike will always go after companies that it believes are infringing on its intellectual property.”
On the other hand, some customizers are lamenting Nike’s crackdown on what many view to be a key part of the sneaker industry.
“While customizers benefit from the popularity of the iconic Nike silhouettes, the relationship is mutualistic,” said Vicky Vuong, the artist behind sneaker customization business Cestlavic. “Nike is seen as the de facto standard for sneaker customization and customizing on Nike has been an integral part in the evolution of sneaker culture.”
Vuong explained that customizers are often viewed as “strong ambassadors for Nike products” by using their products as canvases for their artistic creations.
According to sneaker artist and designer Sophia Altholz, customizers should never mislead customers about the original brand of the shoe, though she believes there is room for a collaborative approach between Nike and customizers.
“As a customizer, my intent is to give the consumer more specifically what they want on a sneaker, rather than deceive them in thinking I am an official partner or creator for Nike,” she said. “It’s understood that artists like us, customizers, are independent businesses, who are a separate entity, making art by the request of the consumer.”
In a statement to FN, Nike said the aforementioned legal efforts are meant to ensure that products with Nike’s name are authentically produced to Swoosh standards.
“We have no desire to limit the individual expression of artisans, many of whom are some of the brand’s biggest fans,” Nike said in a statement. “In fact, we often collaborate with designers, artists and other creatives to innovate new products and experiences for our consumers with the Nike brand, but we cannot allow unauthorized customizers to build a business using and leveraging some of our most iconic trademarks, undermining the value of Nike Inc.’s IP.”
According to Goldstein, there is a case to be made for the legality of customization if the product in question just changes materials and colorways and does not make a shoe that is “materially different from the original silhouettes.”
“I think it’s a balancing act, and from the perspective of sneakerheads, customs are also great for the culture,” he said.
Drip Creationz did not return a request for comment.
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