Nike Goes Ape Over Trademark Infringement

As first appeared in News Break

By Aron Solomon

In this image from Nike’s legal filing, originally posted by Highsnobiety, it’s clear to both the average person and us sneakerheads that A Bathing Ape, more commonly referred to as “Bape,” almost certainly crossed the line here from design homage to intellectual property theft.

As the lawsuit itself states, “Bape’s current footwear business revolves around copying Nike’s iconic designs….”

As I have discussed at length, Nike aggressively defends its intellectual property rights, which is part of why Nike is Nike. The sneaker behemoth has long used the actual law as well as the specter of the law to send a message to competitors not to get too close when it comes to IP.

I am not in any way a Nike apologist. In fact, I have discussed and written about how when Nike overreaches in seeking to protect their IP rights, they kill the creativity that fuels sneaker culture. So my position is more often than not that Nike is the villain. But here, Nike is doing what needs to be done.

Here are five things other sneaker brands can learn from the cautionary tale Bape is about to endure.

1 – Nike WILL sue you

Many sneaker industry observers wonder why it took Nike so long to sue Bape. Part of the answer is that Bape’s business model wasn’t yet ripe for a lawsuit.

I remember the earliest Bape sneakers you’d see in small shops. While they were certainly reminiscent of Nike, because they weren’t ubiquitous, they had their own soul, for lack of a more precise term. That really changed when Bape started to ramp up their sneaker business only two years ago, a move that Nike highlighted in the lawsuit. Bape simply became too big for Nike to ignore.

2 – You will lose even if you win

It’s going to be immensely expensive for you to defend a viable claim brought by Nike and Nike pretty much never brings frivolous claims.

The money you will end up spending to defend a Nike lawsuit will ultimately come out of your R&D and design bottom lines, so you’ll fall further behind than you were before.

Attorney Karim Arzadi observed that:

“If any brand acts in a manner that leads Nike to defend their intellectual property, that brand should assume that Nike has an unlimited legal budget and will not back down.”

3 – It will be a PR and spin nightmare

Nike has a bigger and better PR machine than you do. Your team may be more agile but every time you win a point in traditional or social media, Nike will crush you with 100 points of their own. Your best PR efforts will ultimately just put you in a deeper public relations deficit.

This is really a point that can’t be overstated. Think about the investment Nike has made over the decades into their brand. They understand PR, all media, and messaging better than the vast majority of their competitors combined. You don’t want a PR fight against Nike even if you’re right.

4 – You need to be more creative

If you’re doing manufacturing and design things that get on Nike’s radar, that’s not a sign that you’re innovating, it’s a sign that you need to do better.

Again, paying homage to foundational aspects of Nike’s work is one thing. Getting even close to the line of an intellectual property claim means that you need to step back and reevaluate how and what you’re doing.

5 – You might not survive the encounter

Nike isn’t the cute bear on Instagram reels that comes into your cabin, gets pets, and exits with a slice of pie; it’s the bear that tears out the front seat of your car with you in it.

So where does this go from here?

It’s worth noting that none of this is really about Bape itself. Actually, the Bape designs are interesting and compelling, even if they do borrow too extensively from Nike’s foundational shoe.

I would actually not be surprised if some influential people within Nike (silently, I would imagine) applaud the design effort.

This is simply about Nike protecting what is theirs. And they aren’t stopping with Bape

As Complex reported, Nike is now suing Lululemon not because the Lulu sneakers too closely resemble Nikes, but because their fabric is an alleged patent violation of Nike’s “flyknit” fabric.

Fair warning to any company that gets on Nike’s radar that if you achieve the commercial success you’re dreaming of, it could quickly turn into a nightmare by having to defend a lawsuit against Nike.

About Aron Solomon

A Pulitzer Prize-nominated writer, Aron Solomon, JD, is the Chief Legal Analyst for Esquire Digital and the Editor-in-Chief for Today’s Esquire. He has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world. Aron has been featured in Forbes, CBS News, CNBC, USA Today, ESPN, TechCrunch, The Hill, BuzzFeed, Fortune, Venture Beat, The Independent, Fortune China, Yahoo!, ABA Journal, Law.com, The Boston Globe, YouTube, NewsBreak, and many other leading publications.