A New York federal judge’s decision to not dismiss the trademark infringement lawsuit that Nike has brought against Bape could have repercussions for other brands and companies that are safeguarding their designs.
In January 2023, Nike sued the Japanese streetwear company Bape for allegedly copying some of its sneaker designs, such as iterations of the Air Force 1, Air Jordan and Dunk.
A Bathing Ape was started in Japan in 1993 by Tomoaki Nagao, who is more commonly known as Nigo. The brand expanded into the U.S. about 10 years later. Its most popular style, the Bape STA, is among the designs that Nike has taken issue with in the lawsuit.
Insiders expect fashion and footwear brands to watch the case closely, as it relates to trade dress and intellectual property rights and, more specifically, brand identity and design protection.
“By declining to follow a pair of earlier cases that had required plaintiffs to be more specific about their trade dress claims, this court’s approach offered clarity and confidence to other trade dress owners, as well as an implicit reminder to all designers to be both verbally and visually specific when applying for trade dress registration,” said The Fashion Law’s founder Susan Scafidi on Tuesday.
Trade dress can be protected only if the owner can show the average consumer would be confused as to the origin of a product if another product appears in the same or similar packaging. While trade dress law protects the overall look and feel of a product or its packaging, trademark law protects logos, words, symbols, tag lines or names affiliated with a product or service.
Under the Lanham Act, the body of law that protects intellectual property rights, trade dress protects “the total image of a product including features such as size, shape, color or color combinations, texture, graphics or even particular sales techniques.”
Scafidi described Monday’s court order allowing Nike to proceed with its lawsuit against Bape as “a slam dunk not only for Nike, but for any brand whose designs are so recognizable that they can be registered as trademarks, even without theirassociated logos.”
Bape had argued that the case be dismissed because Nike had not described in detail what it had already proven to the U.S. Trademark Office, namelywhichelements of its iconic styles are distinctive and how they are distinctive, she said.“Instead, the court found that Nike’s ‘see attached’ approach, referencing its multiple trademark registrations and their detailed descriptions andimages, fulfilled its obligation to stateits claims clearly,”Scafidi said.
Allegations of Bape copying Nike’s Air Force 1 sneakers surfaced in 2009, but the company did not take any legal action until January of last year. Nike contacted and met with Bape at that time to address what it described as “Bape’s pirating of Nike’s iconic Air Force 1 design and to protect Nike’s intellectual property rights.” In March of last year, Bape filed a motion to dismiss the lawsuit in Manhattan federal court.
Scafidi speculated that as the lawsuit proceeds, “brand owners will also be watching how the fact that Nike didn’t sue Bape a decade and a half ago and instead waited until Bape’s imitation of Nike’s trade dress grew in frequency and volume may affect the outcome of the case.Even the largest labels can’t reasonably pursue every potential claim of trademark infringement every minute, but the sweet spot between waiting until a lawsuit is worthwhile and waiting too long is a matter of judgment — even if lawyers are eager to just sue it.”
Bape will stop selling certain sneakers, change others, Nike says. Nike settled its trademark infringement lawsuit against Japanese streetwear brand Bape on Monday, per a joint filing submitted in New York's Southern District Court.
April 29 (Reuters) - Nike (NKE. N) , opens new tab has settled its lawsuit accusing Japanese fashion brand A Bathing Ape, also known as BAPE, of unlawfully copying the footwear giant's famous sneaker designs, according to a filing in New York federal court on Monday.
Nike asserted its patents and trade dress rights in each case to safeguard its innovations and market dominance. Trade dress, a form of trademark protection, safeguards products' distinctive look and feel, including packaging and product configurations.
What is trademarked by Nike? Nike has trademarked its name, the "Swoosh" logo, and the slogan "Just Do It," among other designs and phrases. These trademarks protect the brand's identity and prevent unauthorized use in connection with sports apparel, equipment, and advertising.
By 2010 the brand had fallen out of vogue, and it emerged that A Bathing Ape had amassed over 2.5 billion yen ($22.5 million) in debt. Nigo stepped down from the company as CEO, and in 2011 the brand was sold to Hong Kong fashion conglomerate I.T for a paltry $2.8 million.
One of Nike's most famous trademarks is the “Jumpman” logo, a silhouette of former NBA player Michael Jordan. This logo is on every AIR JORDAN sneaker. Nike introduced its Jumpman logo in 1987 and trademarked it in 1989.
Nigo is also co-owner and head designer of Pharrell Williams' clothes brands Billionaire Boys Club and Ice Cream. On February 1, 2011, it was announced that A Bathing Ape had been sold to Hong Kong fashion conglomerate I.T Group. I.T purchased a 90.27% stake in A Bathing Ape.
The lawsuit explains Nike's long delay in pursuing legal action by saying that before 2021, the amount of sneakers Bape sold in the US was insignificant.
Nigo started Bape (aka A Bathing Ape) in 1993, and it became one of the most popular apparel brands in Japan. He was always a fan of Hip-hop culture and wanted to make inroads in the American market. To do so, he reached out to none other than Pharrell.
Is it illegal to print a Nike logo on a shirt? Yes, printing the Nike logo on a shirt without authorization is illegal. It constitutes trademark infringement, as the Nike logo is a protected trademark.
In January 2023, Nike sued the Japanese streetwear company Bape for allegedly copying some of its sneaker designs, such as iterations of the Air Force 1, Air Jordan and Dunk. A Bathing Ape was started in Japan in 1993 by Tomoaki Nagao, who is more commonly known as Nigo.
You can report suspected infringement directly to Nike through their official website. As of September 2021, you could start at product's “Contact Us” page, but always check for the most current guidelines.
Nike will NOT give you the rights to sell these products, and changing original designs of trademarks is a bad idea, as they will still be infringing the design rights of the owner.
Nike does not permit other parties to use or modify its trademarks, images, logos, advertising, or other such materials. It is your responsibility to find out if your use is legally permissible. For instance, using Nike logos in textbooks may be regarded as fair use in some situations.
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Nike is taking steps to curb the proliferation of sneaker-buying bots and resellers. The sneaker company added new terms for U.S. online sales this month to prevent resellers from purchasing its products and reselling them on the secondary market using automated technology or software.
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