NIKE V. BAPE, KOOL KIY AND OMI
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Masinde Muliro University of Science and Technology *
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MISC
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Law
Date
Nov 24, 2024
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docx
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Uploaded by nobertbulinda
‘’Hands off my brand!’’, that is just among the common phrases Nike executives have adopted over the past few years, according to reports from multiple sources. Recently embroiled in three legal crackdowns on counterfeit designers one would wonder just how common Nike is involved in trademark infringement cases. Nike is no stranger to court cases, especially ones related to
patents and trademarks. Over the past decade, Nike has been involved in several court lawsuits concerning the trademark infringements and copyright of its sneaker designs. Not surprisingly, numerous companies routinely turn to courts to safeguard their trademarks from counterfeiting, competitor’s false claims, or imitation. Who are Nike’s latest victims? one would wonder. Well, after lighting comes thunder- this time round with the slamming sound coming from Southern District of New York’s gavel, as the footwear giants filed a trademark infringement lawsuit against three brands: BAPE, Omi and Kool Kiy.
Why hasn’t Nike sued Bape? For years, this question lingered, popping up in debates regarding intellectual property ownership in the shoe industry and as a barricade used by designers who received lawsuits from Nike for counterfeiting its most prominent silhouettes. Based on court filings by Reuters, the case reflects what Nike executives sees as nearly twenty years of tension between the two enterprises, that began when the Japanese fashion brand A Bathing Ape commonly known as Bape first sold its prominent candy-colored footwear in the US in 2005. According to Reuters, filling their case in Manhattan federal court, Nike is looking to put an end to BAPE’s manufacture and sell of their Sk8s, Bapestas
and other designs ripping off the Nike Dunks, Nike Air Force 1
and more. Nike holds that BAPE’s sneaker sale were perceived as ‘’sporadic’’ when they were first launched on the market.
What is baffling is that since BAPE began selling the Bapesta shoe, what clearly is a derivative of Nike’s Air Force 1, Nike never took any legal action against them. A little over two decades after Bapesta was first launched, Nike files a formal complaint lawsuit against Bathing Ape for counterfeit. So, what changed? why now? As for why it took them more than 2o years to file a court case against Bathing Ape, Nike postulates in 2009, they had a meeting with the company to discuss designs, which saw BAPE closing a couple of its stores in the U.S. and reducing its presence in the United States market. ‘’However, the company’s copying is and always has been unacceptable to us’’ Nike’s suit reads. And because their infringements have recently expanded to become a great danger to our rights, Nike must now take action.’’ Nike Contents that over the previous years BAPE’s
sales were insignificant. However, circumstance altered in 2021, as the company started to ‘’drastically increase the scope and volume of its infringement, quickly expanding it physical presence in the United State (establishing new brick and mortar stores in Miami, Los Angeles, and New York), and launching various versions of the COURT STA and SK8 STA all which were copies of iconic Nike designs. In a graphic chart, the company illustrates the abundant similarities between Bathing Apes designed sneakers and their trademarked silhouettes. The visual displays the comparisons between BAPE’s designs such as the Court Sta, SK8 Sta, and the Bape Sta and their corresponding the Jordan 1, Dunk Low, and the Air force 1, respectively.
Source: https://www.google.com/url?sa=i&url=https%3A%2F%2Fwww.complex.com%2Fsneakers
%2Fnike-bape-trademark-lawsuit-
explained&psig=AOvVaw3LXxk85nrqEIjOKAL7pRv2&ust=1675091515753000&source=images&
cd=vfe&ved=0CBEQjRxqFwoTCMjk4bKI7fwCFQAAAAAdAAAAABAE
Nike also contends that the Japanese organization ‘’refused’’ to put an end to their infringements when they were amicably asked. In addition, as observed from the picture above, the Oregon-based footwear juggernaut claimed that BAPE’s counterfeit designs were not only perplexing but also baffling to potential customers, alleging that ‘’secondary-market sellers’’ referred to Bathing Ape’s kicks as ‘’Dunks’’ or ‘’Air Force 1s’’. with this case, Nike hopes Bathing Ape will stop the production of copycat sneaker design and pay a requested, yet unnamed sum of money for harm caused throughout the sales. Switching gears, BAPE isn’t and is likely not the only company to be sued by Nike. Nike recently filed another trademark infringement case against two famous sneaker designers as well as their manufacturers. Are the two cases similar? And if so, to what extend? The documents filed on the
30
th
of November, 2022 in federal court in New York allege that designer Bill Omar Carrasquillo, alias Omi and designers David Weeks and Nickson Arvinger of By Kiy LLC, aka Kool Kiy, have been counterfeiting Dunk and Jordan 1 designs for years. Also taking aim at Wandering Planet- the China based manufacturer, Nike claims that they acted as behind-the-scenes participants that facilitated the infringement of the two designers. ‘’Products from Wandering Planet aren’t genuine Nike goods’’, the lawsuit states. ‘’Nike didn’t inspect or manufacture the infringing goods or any part of the infringing goods, and it didn’t permit Wandering Planet to sell, distribute, promote or make the infringing products.’’ Nike points to the fact that they reached out to the designers about the infringement but unfortunately, they were unable to find a solution to the issue. They claim that the infringement was and continues to be out of free will, and that both Omi and Kool Kiy have kept on infringing on the trademark even after being contacted by Nike.
“Nike can’t and refuses to permit bad actors like the defendants to confuse customers by creating a business on the back of one of our most prominent trademarks, undermining the value of such trademarks and the messages they spread. Nike therefore files this lawsuit to immediately put an end to bad actors such as the defendants from selling, distributing, sourcing and making knockoffs of Nike’s footwear and illegally utilizing Nikes’ most prominent deigns’’, the plaintiff states. To show the prevailing confusion among consumers, Nike in their court documents include attaches tweets referring to the similarities of the designs and even accusing Omi and Kool Kiy of stealing the design in case. One user tweeted’’ (Kiy is) clearly biting of Jordan 1’s,’’ while another posted ‘’that Kool Kiy dude has a good scam going.’’ Furthermore, to cement that already stated confusion in the market, Nike also documents side-by-side comparison pictures between Omi and Kiy’s designs and actual Nike products. Below is an example of such images: Source: https://images.complex.com/complex/images/c_crop,h_1086,w_1736,x_9,y_2/
c_fill,dpr_auto,f_auto,q_auto,w_1400/fl_lossy,pg_1/omrlmpbkfwrt1wtyo5fp/nike-sues-kiy-omi?
fimg-ssr
So, what did Kool Kiy have to say upon notification of the lawsuit? In response to the case, Kool Kiy via instagram writes: “Woke Up This Morning to A Lawsuit from The Mega Giant Corporation That I Supported My Whole Life. The Fact That They Suing a Young Black Man, Who Started Out Exactly How They Did, Is Kinda Crazy to Me ... Ironic How They Tell Us To “Just Do It”
… KIY READY THO” “Woke Up This Morning to a Lawsuit from The Mega Giant Corporation That I Supported My Whole Life. The Fact That They Suing a Young Black Man, Who Started Out Exactly How They Did, Is Kinda Crazy to Me ... Ironic How They Tell Us To “Just Do It” … KIY READY THO” (
https://www.instagram.com/p/ClokWCZLea0/?
utm_source=ig_embed&utm_campaign=loading
)
Omi on the other hand is yet to share his thoughts on the lawsuit.
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