Emily Chow is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

On June 10, 2022, Adidas launched its first federal lawsuit against its main competitor, Nike, at the US District Court in Eastern Texas. Demanding a jury trial, the alleges that Nike has conducted nine counts of patent infringement relating to Adidas’ GPS, sensor and wearable technologies.

Both retailers are at the forefront of the sportswear/sporting goods industry, although Nike substantially exceeds Adidas in global sales with a profit of compared to The are Puma ($5.72B), Under Armour ($5.22B) and Lululemon Athletica ($3.75B).

The global sneaker industry, valued at by the end of 2027. According to , a large proportion of Nike’s income comes from footwear, with an estimated revenue of $28 billion USD in 2021 compared to Adidas’ $12.84 billion.

In its complaint, Adidas claims that Nike induced infringements of nine patents through their development of the , , and mobile applications. Adidas also takes issue with shoe line, which launched in 2016 and features self-tightening laces according to the wearer’s foot. The company claims that this is an infringement of Adidas’ existing patent for an that senses and adjusts the comfort of the shoe when worn. was announced in 2004 and released in 2005, touted as the world’s first intelligent running shoe.

In addition to selling sneakers, Adidas and Nike have both developed various mobile applications and exercise companions. According to , features of Nike’s apps – such as location-based GPS run tracking, the creation of training plans, audio feedback, and integration with third party devices – are direct infringements of Adidas’ intellectual property and its app.  

Furthermore, Adidas points to similarities between its app, launched in February 2015, and , introduced a few days later. Both apps claim to make buying exclusive products easier and fairer for users, . The patented technology in question is , “systems and techniques for computer-enabled geo-targeted product reservation for secure and authenticated online reservations,” which allows Adidas to confirm a and prevent a bot from reserving the product in advance of the launch.

Adidas seeks a declaration from the court that Nike has infringed its patents, a permanent injunction, and compensatory damages, that “unless enjoined by this Court, [Nike’s] acts of infringement will continue to damage adidas irreparably.”

This new lawsuit comes at the and corresponding lawsuit filed in Oregon in December 2021. Nike sought to ban the import of shoes, accusing Adidas of appropriating Nike’s patented technology – a special knit weave made up of recycled and reclaimed yarn that creates a sock-like fit for the wearer.

The in Washington is often a forum for companies competing in the global market. Given the ITC’s relatively faster decisions – 15 to 18 months – , the ITC offers an expedited, comprehensive mechanism for addressing patent infringements.

Back in 2005, Nike also sued Adidas in East Texas. However, the companies It will be interesting to see how the ITC and Oregon verdicts will affect both companies’ strategies moving forward.

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Anita Gogia is an IPilogue Writer and an incoming 2L JD Candidate at Osgoode Hall Law School.

On February 3^rd 2022 Nike Inc. sued StockX LLC for Nike alleges that StockX is selling unauthorized non-fungible tokens (“NFTs”) of Nike sneakers.  These issues are novel in their involving the metaverse. This case has the potential to . NFTs are unique digital assets that are of real-world items.

The Nike Suit

Nike claimed that the StockX NFTs were not a collaboration with them, and that they were authorized by Nike to be sold and promoted. Nike argues that the  use of Nike trademarks are “intentionally deceiving” consumers into believing that these NFTs were Nike-sponsored. Nike has taken steps to venture into the metaverse, having acquired RTFKT Studios, an NFT-creator company, in by selling Nike’s own digital tokens.

Nike claimed trademark dilution, pointing to  StockX’s heavy use of trademarks in attracting consumers familiar with the Nike brand. Nike argued that the NFTs’ inflated prices and terms of purchase and ownership have led to public criticism and opinion that the . With consumers attributing scams to Nike, the use of Nike’s marks on these NFTs have .

Nike seeks an injunction to stop StockX from selling any NFT products using Nike trademarks, an order of destruction of the infringing NFTs, and an order granting monetary, statutory, and punitive damages.

StockX Vault NFTs

StockX has which can be redeemed for the physical shoes On March 31, 2022, StockX filed a explaining that the NFTs are not sold as virtual assets, but are rather to authenticate physical shoes. StockX also claimed their resale methods are protected by the and their use of Nike products tied to NFTs are .

Recent Developments

On May 10^th 2022, Nike in support of its motion for leave to file a first amended complaint in a revised lawsuit. In addition to the previous causes of action, claims against StockX. Nike purchased four pairs of shoes from StockX that were supposedly “verified to be authentic,” but turned out to be counterfeit — one of which matched a StockX NFT. In particular, Nike explained in the that the counterfeit shoes had StockX’s “Verified Authentic” hangtag and came with a receipt from StockX stating that the shoes were “100% Authentic.”

The StockX slogan, “Buy/Sell Authentic Guaranteed” gives consumers a promise for verified products through their authentication services. In a StockX expressed that they take “customer protection extremely seriously” and “invested millions to fight the proliferation of counterfeit products.” StockX has previously responded that Nike’s claims are

Nike’s case depends on whether StockX can prove that the NFTs are a form of proof of ownership rather than virtual assets themselves. StockX responded that the redemption process merely illustrates that they are not virtual assets. This distinction may be in which an artist was sued for selling NFTs depicting the Birkin Bag and calling it “METABIRKINS” — see previous article . Since shoe ownership can change by trading the NFTs, StockX also demonstrates that their NFTs provide a sustainable solution to selling collectibles, as the shoes are not repeatedly shipped between consumers and StockX for authentication — the NFTs are already correlated to a specific product authenticated by StockX.

Nike that the NFTs are virtual assets as a redemption process is currently unavailable. Nike claims StockX is . For , a physical pair of Nike Dunk Lows are $282 on StockX, yet the StockX NFT linked to this shoe has traded for over $3,000.

Nike currently has multiple pending trademark applications for their NFTs. This case will be a significant development in solving metaverse-related legal issues, and may clarify the boundaries of NFT trademark-usage.

The post What legal lines can’t NFTs cross? The Nike v StockX lawsuit may provide answers appeared first on IPOsgoode.

Photo by Hermes Rivera ()

Shawn Dhue is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

For those of you like me who have survived this long asking the question “what is an NFT?” and requiring someone to repeat their answer after you zoned out, here is the definition:

(“”): a digital asset that represents real-world objects like art, music, in-game items, and videos. They are bought and sold online, frequently with cryptocurrency, and are generally encoded with the same underlying software as many cryptos.

Usually brought up with an example of a picture, this phenomenon is making a pretty big debut at the beginning of this decade. Like with many new technologies these days, the laws around NFTs are constantly updating to accommodate this new concept of digital assets. This is all to say that this recent lawsuit filed will once again change NFT’s meaning.

through NFTs. The mega shoe brand alleges that these sales will confuse customers.

is a that sells sneakers, streetwear, electronics, and other daily accessories. What makes this marketplace different from the others is its business of selling NFTs linked to physical goods. Buyers purchase the NFT, which can be sold for the physical item in the image or traded as a digital good.

Here is the confusing part. When StockX sells these NFTs, the NFT is often a picture of the item made by another company—. Therefore, Nike claims that the sale of the NFT of a Nike product constitutes a trademark infringement, trademark dilution, false designation of origin, and many other unauthorized use violations.

. In addition to destroying these NFTs, Nike is asking for damages for all related sales and for StockX to stop selling any NFTs related to the Nike brand.

The lawsuit so far contains many harsh comments about StockX, including that it “, but rather by .”

StockX responded to the lawsuit by saying that NFTs are a “” and that they will be fighting the claim in court.

Regarding StockX’s comment, I believe it is true that NFTs, a new concept that has taken society by storm in the last two years, continue to grow. This type of lawsuit was bound to happen, and the intellectual property law sector needs answers. Unfortunately, Nike and StockX happen to be the parties which must go through the legal process to benefit others. It will be interesting to see the outcome as the decision will likely set a precedent and change how many global companies conduct business.

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It appears that fashion's most infamous case has finally come to a close. Both parties seemingly came away from the Appeal decision satisfied: Christian Louboutin's trade-mark registration remained valid and exclusivity was maintained with respect to red soles with contrasting shoes; Yves Saint Laurent was found not to infringe with respect to its red shoes, red soles colour configuration.

If you want to read up on the Christian Louboutin v. Yves Saint Laurent case, you'll find a full summary �����Ի���.

As of today (October 16), Yves Saint Laurent has filed submissions with the Appeals court seeking it dismiss its various counterclaims against Christian Louboutin.  It appears that both parties are intent on putting this matter behind them and continue to focus on their respective businesses.

Ashlee Froese is a branding and fashion lawyer at Gilbert’s LLP and runs the fashion law website . Follow her on twitter .

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I have Christian Louboutin’s dispute with Yves Saint Laurent in the US, with respect to YSL’s use of the red-soled shoes.  Christian Louboutin suffered a blow when he a preliminary injunction against YSL’s use of the red-soled shoes.  The decision went a step further and called into question the registrability of Christian Louboutin’s trade-mark or whether any color can be registered in the fashion industry.  (This decision is currently being appealed).  Needless to say, some parties were less than delighted with the decision and we saw Tiffany and INTA put in their two cents.

Malheuresement, Christian Louboutin has suffered another blow.  Christian Louboutin took the high-street store Zara to court over its use of red-soled shoes in France.  Although Christian Louboutin initially won, Zara appealed on the basis that Christian Louboutin’s trade-mark registration was too vague (i.e. the registration did not include a Pantone color claim).  Christian Louboutin was unsuccessful in appealing Zara’s victory.  The French court of appeal recently issued its decision in favour of Zara.  Adding insult to injury, Christian Louboutin was also required to pay some of Zara’s legal costs as compensation.  This decision does not extend beyond France.  In the meantime, Christian Louboutin is attempting to mitigate any further damage to its brand by filing a new trade-mark application that has a narrower and more specific color claim.

Christian Louboutin’s struggle to maintain its brand monopoly has piqued a lot of interest from lawyers, consumers and the media.  I have had the opportunity to discuss this on many occasions and I am always fascinated at how polarizing the debate is.  Whereas some believe Christian Louboutin’s position to be ridiculous (generally, these are not trade-mark professionals or fashionistas), others strongly believe that Christian Louboutin is “famous” for its red-soled shoes and should reap the benefits.  To a large extent, this goes back to the age-old debate:  Is fashion art?  Or is fashion innately functional?  In an industry where trends are a central concept, is infringement acceptable?  If one shoe is sold at the $1,000 starting point, can there really be confusion with a similar shoe that is sold at the $50 starting point?  If the function of intellectual property laws is to reward ingenuity, why is fashion design piracy more acceptable?

Ashlee Froese is a branding and fashion lawyer at Gilbert’s LLP and runs the fashion law website . Follow her on twitter .

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