Nike Takes Stand Against Customization Art for IP Enforcement

Nike has begun to track down customers and companies and accusing them of infringement of its trademarks and copyrights for their customization art, namely, the customizing of Nike’s apparel, particularly its shoes.

What is Customization Art?

There is a trend in which companies buy wholesale amounts of Nike shoes, customize them in-house, and then resell them on the Internet for a profit.  The amount of customization on the shoes can vary from a simple re-coloring to complete deconstruction and reconstruction of the shoes with additional materials and changes.

Protecting Intellectual Property and Customization Art

As a result of Nike’s shoes being a target of customization art, Nike has been sending cease and desist letters to multiple online companies and brought suit against several others.  One of Nike’s lawsuits against Drip Creationz has drawn significant attention as Drip Creationz is one of the best in customization art and has become a customer favorite.  Consequently, this suit highlights the choices famous brands must make when determining whether to pursue infringement actions against niche companies and brands that can potentially result in a loss of goodwill in the eyes of its customers.  While some may argue that companies like Drip Creationz should pursue a licensing agreement with Nike, the reality is that such licenses are rarely granted because they don’t lean toward the benefit of the well-known brand.

Nike has a long history of asserting its intellectual property rights, having recently also sued MSCHF and Lil Nas X over their sale of “Satan Shoes,” which are shoes that have become infamous for having an actual drop of human blood mixed into the sole of its shoes and its celebrity-connection.  Nike also had no problem suing its own former employee, Jeffrey Wasokowiak, who left Nike in order to pursue a full-time career in customizing sneakers.

Balancing Brand Protection with Consumer Perception

Enforcing trademarks and policing illegal use of one’s trademark is important, but at the same time, famous brands must be cognizant that such actions can also alienate customers. There are many goods, and sometimes services, that technically infringe on famous brands but are often overlooked because their mere existence as an activity or art promotes the brand at the same time. Customization art is just one such example.  Additionally, fan fiction and cosplay are often permitted by companies/celebrities because the good generated from allowing such use often outweighs the negative press that would be garnered from strict intellectual property enforcement. 

Key Takeaways on IP Enforcement Against Customization Art

Nike’s recent lawsuit against Drip Creationz has highlighted the potential cons of intellectual property enforcement by big name brands against third-party customization companies because:

• Nike faces a potential negative impact for attempting to shut down the popular art of Drip Creationz;

• Nike’s aggressive stance in pursuit of infringers can be seen as overbearing when other brands allow such customization art to exist; and

• Nike’s enforcement can potentially be seen by consumers as a view toward stifling of creativity.

For more information on trademark litigation, see our Intellectual Property Litigation and Industry Focused Legal Solutions pages.