Nike vs. MSCHF — The Devil is in the Details

BY: EMILY MARCZAK

SUPERVISING ATTORNEY: CHRISTINE-MARIE LAUTURE, ESQ.

MSCHF recently had quite a dance with the devil…if the devil was an athletic apparel corporation named NIKE. MSCHF is an art collective based in Brooklyn, NY, which produces a variety of artwork that ranges from sneakers and other physical products to social media channels and photographs. The company released a pair of quickly sold-out sneakers dubbed the “Satan shoes” in collaboration with rapper Lil Nas X and his latest single, “Montero”. As the name suggests, the sneakers feature a black and red theme with a bronze pentagon attached on the front of the sneaker and in the sole. There is also a Bible verse reference on the sneaker featuring Luke 10:18, which is a quote about seeing Satan fall like lightning from heaven. The most notable aspect of the sneaker, which is receiving a lot of buzz online, is the drop of human blood that is allegedly featured in the sole of each pair of sneakers. The blood is claimed to come from the donation of six designers of the MSCHF team.

Not so fast MSCHF – Nike’s on the way

Nike’s issue with a Satanic inspired shoe? The Satan shoe from MSCHF is a pair of Nike Air Max 97 shoes that MSCHF modified without Nike’s “approval or authorization.” Nike is upset at the amount of negative attention that the shoe has garnered, especially because Nike’s notorious swoosh is still on the modified sneaker. The MSCHF modified sneaker strategically costs $1,018 USD — likely in reference to the Luke bible verse on the sneaker. On March 29, 2021, in a very impressive short amount of time from the sneaker’s release, Nike filed a lawsuit in the U.S. District Court for the Eastern District of New York alleging trademark infringement and dilution, false designation of origin, and unfair competition. Nike is asserting that MSCHF is capitalizing on Nike’s reputation and goodwill through using Nike’s trademarks in a way that consumers and potential consumers would believe that MSCHF’s Satan Shoes are associated with Nike when they are in fact not. As evidence of this confusion, Nike points to callouts of plans to boycott Nike goods over the mistaken association, and other similar documented evidence. Due to this confusion, Nike states its business reputation and goodwill is being irreparably damaged.

 Soon after MSCHF received notice of the lawsuit from Nike, they released a “Legal Fees” tee, for $66.60 USD of course, bearing an image of Nike’s legal complaint (which has now disappeared from the website). MSCHF is arguing back stating that Nike did not have a problem with MSCHF’s customization of Nike’s Air Max 97 to create MSCHF’s “Jesus shoe” in 2019. The Jesus shoes have a similar modification style to the Satan shoes, with a blue and white theme and a metallic cross on the front and a drop of holy water in the sneaker’s sole along with a reference to a Bible verse. However, these shoes received less backlash than the Satan shoes, and Nike might argue that the Jesus shoes did not affect their business reputation in the same way.

 The courts ordered an injunction against MSCHF at the most eventful time. MSCHF and Lil Nas X were planning on a giveaway for their 666th pair of shoes on Twitter which now has been shelved. Other popular websites for reselling had their listings removed. Given this controversy, the potential resale value of these shoes would have greatly risen. As Lil Nas X proclaimed in Montero, I wanna sell what you’re buying.

However, less than two weeks after Nike filed the lawsuit, the parties have decided to settle their differences outside of court. While terms of settlement are typically confidential, a representative for Nike mentioned that it has asked MSCHF to “initiate a voluntary recall to buy back any Satan Shoes and Jesus Shoes for their original prices in order to remove them from circulation.” How likely will this request reign successful? Likely not today, Satan. Nike made sure to note that purchasers who choose to keep their #SatanShoes “and later encounter a product issue, defect or health concern should contact MSCHF, not Nike.”

NIKE

Living in a Glass Shoebox?

 The great irony in all of this is that the USPS may sue Nike over their latest sneaker design which draws heavy inspiration from USPS. Nike released an image of Nike AF1 sneakers that appear to be inspired by USPS’ Priority Mail shipping boxes. The color palette of the shoe is red, white, and blue, and there is also a USPS-esque label on the heel. The USPS released a statement on its website on April 1st stating that the USPS “protects its intellectual property and that the sale of unauthorized and unlicensed products denies support to the hardworking women and men of the Postal Service.” (We’ve heard this *somewhere* before.)

 Additionally, within this statement, the USPS expressed its disappointment in Nike, stating that “it is unfortunate where a large brand such as Nike aggressively protects its own intellectual property but chooses to leverage another brand for its own gain. The Postal Service is disappointed in Nike’s lack of response to repeated attempts to come to a solution. The Postal Service will take whatever actions it deems necessary to protect its valuable IP rights.” Whether Nike will respond to the claims of its hypocrisy remains to be seen.