A Years-Long Sneaker Saga: Nike Finally Sues BAPE for Trademark Infringement
Nike’s iconic trademarks have been instantly recognizable for years.[1] Whether you’re a sneaker fanatic or just enjoy a comfortable shoe, Nike’s popular sneaker designs are a symbol of the brand’s success and longevity.[2] However, Japanese fashion brand, A Bathing Ape, commonly known as “BAPE,” has been slowly infiltrating the Nike consumer base since the early 2000s by creating their own sneakers that look extremely similar to Nike’s trademarked designs.[3] Despite many years of BAPE selling sneakers with striking resemblances to Nike’s classic styles, it is only within the past year that Nike has turned to the courts to prevent BAPE from selling their allegedly infringing designs.[4] They filed their complaint on January 25, 2023, alleging trademark infringement of their registered trademarks in their iconic Air Force 1, Air Jordan 1, and Nike dunk sneaker designs.[5] This complaint comes after BAPE ignored Nike’s cease and desist sent on August, 24, 2022.[6] The real question is, why did Nike wait so long to take legal action?
Shoe Comparisons[7]
To answer that question, a brief history of both sneaker companies will help shed light on why BAPE’s alleged copying of the Air Force 1, Air Jordan 1, and Nike Dunk trademarks is of particular concern for Nike’s brand.[8] These Nike styles have been on the market for decades, some since the 1980s, and have remained popular amongst everyone from basketball players to the general public ever since their release.[9] In the early 2000s, Air Force 1s became especially popular amongst celebrities and music artists, which allowed Nike to expand their consumer base from sports fans to a more diverse audience of fashion goers, music fans, and even the everyday sneaker wearer.[10] Nike shoes can be seen today on celebrities like Rihanna and Justin Bieber, and high fashion models such as Kendall Jenner.[11] Nike has impressively cultivated a brand and entire line of footwear that appeals to different interests and styles, all while remaining relatively affordable for those of us who don’t have the spending budgets of Rihanna or the Jenner-Kardashian clan.
BAPE’s US success story is unlike Nike’s. The Japanese sneaker brand proved popular in the Asian market, but after their brief, initial success that came with opening American stores in 2005, BAPE struggled to maintain popularity throughout the 2010s.[12] The first butting of heads between the two brands actually came in 2009 when Nike realized BAPE sneakers were much too similar to their signature designs.[13] Nike met with BAPE and essentially told them to stay in their lane.[14] After an apparent agreement was made in 2009, BAPE altered its styles to noticeably depart from Nike’s trademarked designs and also decreased its presence in the US market.[15] Small details such as the change in leather placement and color around the laces and heel made enough of an aesthetic difference to provide the distinctiveness Nike felt was lacking in previous designs.[16] For a few years, all seemed well between the two sneaker companies. But this stylistic distance from Nike would only last so long.
Unfortunately for Nike, BAPE’s compliance with an artistic move away from Nike designs was revoked in recent years.[17] While Nike seemed satisfied with the distance between the two brands throughout the 2010s, their complaint explains that in 2021, BAPE’s designs had finally crossed the line.[18] BAPE apparently decided that the 2009 agreement was out the window and started manufacturing and selling designs that were almost identical to Nike’s iconic shoes… again.[19] According to Nike, their registered trademarks in Air Force 1s, Air Jordan 1s, and Dunks had been minimally infringed for years and recent changes have resulted in enough damage to Nike’s reputation and finances to compel them to bring the trademark infringement suit.[20] The three trademarks at issue were registered in 2008/2009, but recently BAPE appears unbothered by the protection granted to the federally registered trademarks.[21]
Considering Nike’s slogan literally advises to “Just Do It,” it is initially curious how the brand approached suing BAPE. They perhaps didn’t practice what they preach. At the first instance of BAPE’s copying back in the mid-2000s, one would surely think Nike would shut down a copying scheme with a defiant and immediate lawsuit rather than tread lightly and hope a casual agreement during the 2009 meeting would be enough to deter BAPE’s copying forever.[22] As Nike explains in their complaint, it came down to true competition and the negative impact BAPE had on Nike’s sales and reputation.[23] They claim that back in the mid-2000s, BAPE had nowhere near as much popularity amongst consumers as they do in recent years.[24] However, Nike fails to mention the successful collaborations BAPE had with Pharrell in the early 2000s and with Kanye West in 2007.[25] It seems peculiar that BAPE’s copying of Nike’s designs, along with these huge collaborations, wouldn’t prompt more of a concern for Nike back in 2007.[26]
Perhaps Nike held back from costly litigation because of the different consumers being targeted by Nike and BAPE. As mentioned previously, Nike has always been pretty affordable, despite their infiltration into celebrity wardrobes.[27] But BAPE has an entirely different target consumer. While Nike sneakers average around $100-150 in 2023, BAPE sneakers have always been marked at the much higher price point of about $300-400 per pair.[28] It makes logical sense that Nike’s almost identical, yet significantly cheaper, sneaker designs reigned supreme for the average consumer. But for those who can comfortably drop a few hundred dollars on a pair of sneakers, it is possible that Nike feels their sneakers are being replaced by BAPE shoes in high fashion settings, and they want to prevent BAPE from taking their spot in celebrity wardrobes.
The current design that concerns Nike is BAPE’s STA sneaker.[29] BAPE chose to re-work the shoe design into one that was essentially the Nike Air Force 1 design with a star at the beginning of a slightly more geometric swoosh.[30] From a untrained eye with little sneaker knowledge, the two shoes admittedly look extremely similar. It looks like an Air Force 1 with a star. Nike cites issues of dilution of brand and confusion amongst consumers as primary concerns with BAPE’s current sneaker designs in their complaint.[31] Further discussed is BAPE impairing distinctiveness of Nike’s brand and trademarks.[32] BAPE is accused of capitalizing on Nike’s valuable reputation by using “confusingly similar marks [that] constitute a false designation of origin.”[33]
Understandably, Nike feels their decades of brand development and reputation building is being hijacked by BAPE’s sneaker design.[34] They want their iconic styles to remain unique and noteworthy. Their lawsuit hopes to prevent BAPE from selling and manufacturing th shoes that Nike argues are infringing on Nike trademarks and creating confusion amongst buyers.[35] Nike also is fighting for monetary damages, which reveals they may be concerned about revenue lost to BAPE a result of their infringing designs being sold.[36] But Nike will likely have to be patient. Litigation between the two sneakers moguls will probably keep any sneakerhead and/or IP news junkies on the edge of their seats for quite a while. So stay tuned, hopefully there is an update from SDNY soon.
Footnotes
