Posts Tagged: "nike"

On September 1, the U.S. Court of Appeals for the Federal Circuit (CAFC) affirmed a decision by the Patent Trial and Appeal Board (PTAB) finding that the PTAB did not improperly place the burden of persuasion for proving unpatentability of proposed substitute claims raised sua sponte by the Board on Nike and that substantial evidence supports the PTAB’s obviousness analysis. The decision comes after two prior rulings by the CAFC in related cases between Nike and Adidas. The present appeal concerned the PTAB’s determination that proposed substitute claim 49 of Nike’s U.S. Patent No. 7,347,011 (‘011 patent) was unpatentable as obvious.

StockX, which describes its e-commerce resale platform as “[t]he current culture marketplace,” is primarily used by consumers to resell and buy sneakers, among other items. In January 2022, StockX announced its plans to launch The Vault, which uses non-fungible tokens (NFTs) to allow buyers to track ownership of physical products resold on its e-market and warrant their authenticity, including Nike shoes. Swiftly thereafter, Nike sued StockX in the United States District Court for the Southern District of New York (SDNY), alleging that StockX’s use of Nike’s famous marks in connection with its NFTs constitutes trademark infringement. Nike, Inc. v. StockX LLC, 1:22-cv-00983-VEC. In its original February 3, 2022, complaint, Nike alleged that StockX mints NFTs using Nike’s trademarks without authorization and sells them to consumers, who either believe or are likely to believe that StockX’s NFTs are connected with Nike when they are not.

Though the parties have quickly settled their case, the question remains open: was Lil Nas X’s “Satan Shoe” an exercise of free speech or a trademark violation? What we do know is that sneaker giant Nike’s complaint filed in the Eastern District of New York on March 29, 2021 alleged a dispute of biblical proportions against Brooklyn art collective MSCHF Product Studio, Inc. Nike targeted its own Air Max 97 shoe, which it claimed MSCHF and its collaborator Lil Nas X (who was not named in the lawsuit) materially altered to feature an upside down cross, a pentagram, and an injection of human blood into the sole to create the “Satan Shoe” – 666 of them to be exact. The Satan Shoe still displays Nike’s famous Swoosh, which inspired calls to boycott the brand for its alleged association with the controversial shoes. Nike asserted claims of trademark infringement, trademark dilution, false designation of origin, and unfair competition, and sought a temporary restraining order, a permanent injunction, and damages.

The U.S. Court of Appeals for the Federal Circuit (CAFC) yesterday affirmed a Patent Trial and Appeal Board (PTAB) decision that certain claims of Nike, Inc.’s U.S. Patent Nos. 7,814,598 and 8,266,749 are not unpatentable as obvious. The Court also disagreed with Nike’s argument that Adidas did not have standing to appeal because it could not prove that it had an “injury in fact.” The opinion was authored by Judge Moore.  

This activity has drawn a lot of attention and some commentators have gone so far as to decry these actions as “trademark bullying” carried out by powerful university interests and detrimental to the prospects of small businesses. According to trademark lawyer Josh Gerben, founder and principal of the Gerben Law Firm, not every trademark enforcement campaign by a university constitutes bullying. “Universities have a lot of value in their trademarks and they have a legal requirement to police the marketplace to protect their trademarks,” Gerben said. “In some instances, universities just appear to forget about the public relations consequences of taking legal action, and, while the action may be legally justified, it is done in  a way that makes the university appear to be a bully.”

Recently, Denmark-based footwear maker ECCO filed a suit alleging claims of patent infringement against Manhattan Beach, CA-based shoemaker Skechers. The suit, filed in the federal district for Delaware, asserts a series of patents owned by the Danish shoemaker which cover aspects of golf shoes which have been commercially successful for ECCO in recent years. According to ECCO’s complaint, the alleged claims of infringement by Skechers involve the particular cleat arrangement as well as the structure of the cleats used in the sole in the golf shoes, which are covered by ECCO’s patents.

The case is interesting, however, not just because it involved famous subjects – a “renowned photographer” (as the Plaintiff was described in the court’s first sentence), a famous brand (Nike) and one its most well-known logos (“Jumpman”), and a photo of one of the most famous people in the world (Michael Jordan) – although these items alone perhaps merit some attention. But for lawyers and those who deal with copyright protection in the business world, perhaps more interesting is the court’s explication of the classic copyright concept of the idea-expression dichotomy, as well as its holding that the photograph at issue, while not infringed, was entitled to broad protection.

The fitness wearables market is driving millions of shipments per year in silicon and devices. By 2019, IDC predicts that the worldwide wearables market will grow to around 155.7 million units. In addition to driving revenues — the fitness wearables market alone is projected to reach nearly $30 billion US dollars in 2016 as noted. The patent licensing landscape for this market is on the verge of explosive growth, especially since many of the patents used in IoT technology are nearly 20 years old.

One way in which innovation has already touched the games before it has even begun is in the figure of the famed Olympic torch, which travels the world before lighting the fire that announces the start of every Games. Rio’s version, the Tocha Olímpica, has a few unique technological aspects setting it apart from previous torches. Designed by Chelles & Hayashi, a São Paulo firm, the torch has movable segments which expand vertically whenever the flame is passed from one torchbearer to the next. When the segments expand, they unveil resin surfaces underneath which show the colors of the Brazilian national flag; other colors represent the land and water surrounding Rio. The torch includes built-in cameras to capture scenes of its journey across the world from Athens to Rio. In a nod to the Paralympics, the torch includes Braille writing for blind torchbearers and its center of gravity is located in the lower-third of the torch, increasing the ease of carrying for wheelchair-bound bearers.

In late 2014, Nike Converse Inc. launched an aggressive attack in the U.S. District Court in Brooklyn against companies including Walmart, Under Armour and Ralph Lauren for infringing upon Converse’s signature Chuck Taylor shoe. Nike Converse sued a total of 31 companies for copying the rubber “bumper” running around the front, a “toe cap” on the top of the shoe above the bumper, and lines or stripes running around the sides of the classic kick. Many of us have either owned or seen the Chuck Taylor and can identify these unique traits.

Finally, the Court held that the Board’s denial of Nike’s motion to amend for failure to show patentable distinction over “prior art not of record but known to the patent owner” was improper. The Court held that the Board’s finding that Nike’s “conclusory statement” was “factually inadequate” under its interpretation of the Idle Free decision was too rigid and was an improper ground to deny Nike’s motion. Accordingly the Court affirmed in part, vacated in part, and remanded the decision to the district court.

Among this year’s inductees into the National Inventors Hall of Fame is William Bowerman, the creator of the modern athletic shoe. Bowerman’s portfolio of patents include some of the foundational innovations that made Nike, the company that he helped to establish, such a force in the sporting equipment industry… We take a long view at the development of casual sneakers for use in athletic and recreational activities. From the first attempts at creating shoes with better stability while running, through contemporary inventions involving digital analysis utilizing shoe sensors, athletic shoes have greatly increased in technological complexity over the past 100 years.