JUST “DROPPED”: NIKE’S LATEST TRADEMARK FORESHADOWS THE DEMISE OF THE KNOCKOFF SNEAKER INDUSTRY AND LIMITS CONSUMER CHOICE

December 18, 2021
NCJOLT-Vol.-23.2_416-451_Perez

Trademark law allows for everlasting protection of product designs. Owners of distinct designs can register their marks and maintain ownership of the elements of those designs. The sneaker industry’s biggest companies make use of this system to ensure that their sneaker designs remain unique and are not counterfeited or imitated in a way that reflects poorly on their brand. However, the sneaker industry’s aggressive use of trademarks can exceed these accepted goals of trademark law by stifling competition and limiting consumer choice. For example, Nike recently and controversially acquired a trademark for the silhouette and elements of its Air Jordan 1 sneaker. This sneaker is a popular target for knockoffs and counterfeits. By trademarking its silhouette, Nike sent a message that the brand is looking to increase its already-forceful efforts to limit infringing uses of its mark. Protection of the shoe’s silhouette appears to be a response to the recent wave of high-end bootlegs and knockoffs, which have risen in prominence due to the unavailability of popular sneakers and the promotional effect of the internet and social media. Without change, actions like Nike’s may represent the “death knell” for this emerging market that currently affords consumers greater choice and small designers a chance to compete with sneaker giants like Nike. While trademark law today protects trademarks, such as the design of Nike’s Air Jordan 1, trademark law should be reformed to provide space for detailed reimaginations of popular shoes to enter the market and increase competition. Such proposals should place a time limit on the protection of designs that do not feature a brand’s signature logo or mark to incentivize larger brands to release new designs and maintain their products’ quality.

Author: Claudia Perez

PDF: http://ncjolt.org/wp-content/uploads/sites/4/2021/12/NCJOLT-Vol.-23.2_416-451_Perez.pdf

Volume 23, Issue 2