MSCHF did not respond to repeated requests for comment on the trial.
Lil Nas X is not named as a party in the lawsuit. Representatives for the musician did not respond to calls or emails seeking comment Monday night.
“MSCHF and its unauthorized Satan shoes are likely to confuse and dilute and create a mistaken association between MSCHF and Nike products,” the sportswear company says in its complaint. “In the short time since the announcement of the Satan shoes, Nike has suffered significant damage to its goodwill, including among consumers who believe Nike endorses Satanism. ”
Nike has released statements to several media outlets, including CNN, clarifying that it “has no relationship with Lil Nas or MSCHF” and that “Nike has not designed or released these shoes and we do not endorse them. ”
The black and red modified Nike Air Max 97 sneakers – adorned with a bronze pentagram charm and a drop of human blood in the midsole – are the latest custom Nike shoes released by MSCHF. The company also released a pair of bespoke “Jesus Shoes” in 2019.
In its complaint, Nike said the Satan shoes did sport Nike’s famous Swoosh logo.
The controversy began last week with the release of the music video for Lil Nas X’s latest single “Montero (Call Me By Your Name)”. The video portrays the singer provocatively dressed as both a fallen angel and a demon riding a stripper pole to hell where he gives the devil a lap dance.
The day after the Lil Nas X music video was released, he responded to the reaction with a message saying, “I spent my entire teenage years hating myself because of the shit you preached happening to me because I ‘was gay,’ he wrote. “So I hope you’re crazy, stay crazy, feel the same anger you teach us to have towards ourselves.”
Trademark lawyers weigh
The entire episode has all the makings for a possible historic legal battle over the current limits of intellectual property law, according to several trademark attorneys, who say Nike has strong reasons to pursue its lawsuit.
“Yes, Nike has a colorable case of trademark infringement and tarnish dilution,” said Alexandra J. Roberts, who teaches trademark and entertainment law at the Franklin Pierce School of Law at the University of New Hampshire. “Consumers can be misled into believing that Satan shoes are authorized or approved by Nike. Nike could also argue that the use damages its reputation by associating its brand with satanic symbols. ”
Roberts and other lawyers have said the trademark issue at stake is commonly referred to as the first sale doctrine, which gives people who purchase a copy of a copyrighted item the right to resell it without the explicit authorization of the creator.
It’s a legal rationale that grants artists who buy and reuse individual copyrighted products the opportunity to express and profit from their own creativity, according to trademark attorney Josh Gerben of Gerben Perrott PLLC . Gerben pointed out that Nike shoe designers like MSCHF usually sell their work in online marketplaces.
“You have all kinds of artists that go out there and they take a shoe and they’ll do a whole bunch of custom art on the shoe and maybe sell it back for $ 1,000 to $ 3,000,” Gerben said. . “This is something Nike is well aware of and has done absolutely nothing to disturb because there is a sneaker culture here. ”
The problem for Lil Nas X and MSCHF in this case, according to Gerben, is the hundreds of shoes that have been sold, as individual works of art are easier to defend in court than objects that have been mass produced. .
“People think Nike is behind something because there are so many [shoes]”He said.” It’s not just a single piece of art that an artist took a shoe and made. It’s somebody’s taken a whole bunch of Nike shoes, personalized them in the exact same way, and sold them to such a sophisticated point that people think Nike is involved. ”