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Nike vs MSCHF: Importance of trademark policing for brand reputation

MSCHF released their new creative project, “The Satan Shoes”, in collaboration with the rapper Lil Nas X, following the release of a devil-themed music video for his song “Montero (Call Me by Your Name)”. The shoes were a customized version of Air Max 97, featuring human blood and Nike’s logo. Nike did not appreciate artistic expression at the expense of its brand reputation.

By

Jan Buza

Who are MSCHF?

MSCHF (pronounced mischief) is an art and advertising company based in Brooklyn, New York. They are a collective of marketing specialists focusing on creating viral products that generate a lot of publicity. MSCHF seemingly mastered the art of viral marketing, which is what makes them so appealing to many celebrities. Endorsed by public figures such as LeBron James, Drake, Miley Cyrus and Grimes, MSCHF enjoy their reputation as modern wizards of viral marketing. 

However, their recent release of the Satan Shoe as a collaboration with Lil Nas X generated too much publicity to go unnoticed by the sportswear fashion giant such as Nike. MSCHF produced exactly 666 pairs of Air Max 97 shoes, featuring an upside-down cross, a pentagram, and an injection of human blood into the sole to create the “Satan Shoe”. The shoes cost $1,018 per pair and were sold out in less than a minute after release. 

What does Nike have to do with it?

Due to their controversial nature, the sneakers drew an expected, and most likely intended, outrage online. Since the shoes also feature Nike’s trademark swoosh logo, a part of the public directed their protest towards Nike, though the company had nothing to do with the product or the brand behind it. As a leader in branding, fashion, and commerce, Nike has a reason to closely monitor any unauthorized use of its products. Since this kind of publicity causes more harm than good to their brand, Nike sued MSCHF for lack of authorization and subsequent brand confusion.

This was also not the first time MSCHF decided to test Nike’s patience. Satan Shoe is the next project inline with their previous drop in October 2021 - “Jesus shoes” — custom Air Max 97s whose soles contained holy water from the River Jordan — for the price of $1,425. 

In their lawsuit, Nike requested a temporary restraining order and a decision to bar MSCHF from “manufacturing, transporting, promoting, advertising, publicizing, distributing, offering for sale, or selling any products (including but not limited to the Satan Shoes) under Nike’s marks, [and/or] any marks substantially indistinguishable therefrom.” [1] 

The case was settled after MSCHF announced that they would issue a voluntary recall on the shoes and offer a buy-back program for previously released customized Nike sneakers “Jesus Shoes.” MSCHF didn’t see a lot of sense in fighting for Satan Shoe as it has “already achieved its artistic purpose.”

Selective trademark monitoring

This case reminds us that trademark monitoring is the sole responsibility of the brand, and not taking immediate action against potential infringers might lead to more complications down the road. Earlier Nike made a strategic decision not to challenge the release of the “Jesus shoes”, as this product got less attention and more positive feedback from the consumers. This decision, in turn, gave MSCHF implicit permission to take advantage of Nike’s brand to push their own agenda. Brands generally want to avoid a situation where their intellectual property is used in a way that could significantly damage their reputation. This is why they should be especially careful about monitoring their trademarks.

[1]https://www.jdsupra.com/legalnews/trademark-tales-nike-protects-brand-1713038/

Jan Buza
Jan Buza
Product Mind

Helped scale portfolio firms for a VC fund

CEMS Prague

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