Who, What, Where, When and Kawhi?
Around the same time that Nike closed all of its stores across the United States due to the coronavirus outbreak,[1] Nike landed a victory in its recent copyright dispute with NBA superstar Kawhi Leonard.[2] In the midst of the 2019 NBA Finals where Leonard earned MVP, Leonard asked a federal judge in San Diego for a declaration designating him as the sole author of the “Klaw” logo at issue, and alleged that Nike engaged in fraud by registering what Leonard regards as his logo with the U.S. Copyright Office.[3] Importantly, prior to this dispute, Leonard cut ties with Nike in 2018 and signed an endorsement contract New Balance,[4] a competitor of Nike’s who would now like to use the logo on their goods.[5]
The “Klaw” design consists of a monochromatic outline or imprint of a hand that makes out the four-time NBA all-star’s initials—“KL”—and his jersey number—2.[6] The hand design of the logo is intended to emphasize Leonard’s distinctly large hands, which measure eleven and a half inches across and have helped him become one of the NBA’s most feared defensive players.[7] For these reasons, Kawhi is known as “The Klaw” by fans.[8] Nike affixed the “Klaw” design to a variety of merchandise marketed and sold under the Jordan brand, pursuant to the endorsement deal that Leonard and Nike signed in 2011.[9]
Leonard claims that he invented the “Klaw” logo while he was an NBA prospect on the San Diego State basketball team from 2009 to 2011, and that he first shared this design with Nike during his rookie season playing for the San Antonio Spurs.[10] Though Leonard acknowledges that Nike refined and even improved his proposed logo—his “sketch”[11]—he insists that he retained final say over the logo’s appearance.[12] Moreover, Leonard insists that the “Klaw” design is clearly derivative of his own sketch,[13] as the “Klaw” design retains all of the integral elements of the sketch, including his initials, jersey number, the positioning of the hand, the identifiably large size of the hand, and the overall style.[14] However, Leonard’s attorney noted that rather than claiming ownership of a derivative work, Leonard is claiming “ownership of the logo Leonard created.”[15]
Nike paints a different picture. Although Nike concedes that Leonard shared his sketch with them in 2011, they dispute Leonard’s claims that he is the sole author of the “Klaw” design and that Nike engaged in fraud by registering what he regards as his logo with the U.S. Copyright Office.[16] First, Nike insists that the final iteration of the “Klaw” logo was created by Nike’s team of designers and approved by Leonard himself in 2014.[17] They note the fact that Leonard admitted in an interview with Nice Kicks that the Jordan brand—a Nike subsidiary—deserves the credit as they were the ones who, in the words of Leonard, “refined it and made it look better.”[18] Second, Nike argues that the “Klaw” design is “meaningfully different” than Leonard’s sketch, and points out several notable differences: the size and angle of the fingers in each of the designs, the contrasting overall styles of each design, and how each logo depicts “KL” and “2.”[19] In addition to disputing Leonard’s claims, Nike has also counter-sued, alleging that Leonard improperly filed a U.S. Federal Trademark application for the “Klaw” design[20] and fraudulently held himself out to be the sole owner when he applied to register the logo with the U.S. Copyright Office.[21]
On April 22, 2020, the district judge heard arguments over the phone regarding Nike’s motion for a judgement on the pleadings, which was granted in part.[22] In holding that Nike was the owner of the “Klaw” design and thereby dismissing Leonard’s claims on the merits, the main factor the judge considered was whether it was developed “in connection with” the Nike contract.[23] The judge found that the sketch Leonard shared with Nike was sufficiently distinct from the final “Klaw” design.[24] Additionally, the “Klaw” design co-developed by Leonard and Nike was found to constitute an “independent piece of intellectual property” and not merely a derivative production of Leonard’s sketch.[25] In the judge’s opinion and order issued May 18, 2020, he dismissed Nike’ claims against Leonard for copyright infringement and fraud on the Copyright Office.[26]
Setting the merits of this specific case aside for a moment, is there another lens through which to view this case? To some, especially legal realists, Nike’s victory comes as no surprise. Though the complaint was lodged in the U.S. District Court for the Southern District of California in the same city in which Kawhi Leonard attended college, Nike’s motion to change venue to the District Court for the District of Oregon—where the company is headquartered—was granted shortly thereafter. The basis for granting the motion was the Nike contract’s forum selection clause, which provided that any dispute arising from the contract would be litigated “in a Court of competent jurisdiction within the State of Oregon.”[27] In addition to the potential hometown advantage due to the company’s god-like corporate presence in Oregon, Judge Mosman, who decided this case, also ruled in Nike’s favor in an earlier intellectual property dispute involving a photographer, Michael Jordan, and the famous silhouetted “Jumpman” logo.[28] Although Nike would likely have won this case on the merits regardless due to the clear terms of the contract, one still wonders if the outcome would have been any different had the case not been moved to Nike’s hometown venue in which it is a repeat player.
Footnotes
