Nike Sues MSCHF Over Its High Profile Satan Shoes, Claiming Unsafe Blood May Dilute The Exalted Nike Swoosh

from the 1st-sale-and-dilution dept

Well, here's a fun one. Over the weekend, the musician Lil Nas X announced that, along with MSCHF, he was selling "Satan Shoes." From the beginning this was all just a silly publicity stunt that more or less played out probably exactly as those involved expected. If you don't know what MSCHF is then it's worth reading up on the organization that claims it's based on "structured chaos" and only ever so often randomly drops some kind of offering for sale, usually in limited quantities that get lots of attention and sell out quickly. As was summarized in a Business Insider article about MSCHF last year:

There's no apparent thread connecting MSCHF's slew of projects: The team has built a browser add-on that disguises your Netflix watching as a conference call, designed a squeaking rubber chicken bong for smoking weed, and created a YouTube channel solely consisting of videos of a man eating everything from a tub of mayonnaise to a photo of Pete Davidson. But for Whaley, the lack of continuity is the point: As long as the team can figure out the resources to create and launch a product, "nothing is safe."

"Our perspective is everything is funny in a nihilistic sort of way," Whaley said. "We're not here to make the world a better place. We're making light of how much everything sucks."

The company originally got the most attention for another pair of shoes -- the "Jesus shoes." That involved a modified Nike Air Max 97 with -- they claimed -- holy water injected into the soles of the shoe. The Satan shoe is a somewhat obvious follow up to the Jesus shoe. This time, 666 pairs of the shoe were made, also upcycled Nike Air Max 97s. Rather than having "holy water" injected into the soles, this one included red ink, with a promise of a single drop of blood (whose blood is never stated), and then some red stitching and embellishments on the shoes.

A whole bunch of people idiotically freaked out about this, like we were back in the Satanic Panic from the 1980s. Even worse, though the whole thing was (1) clearly a stunt and (2) obviously not endorsed by Nike, the usual brigade of pearl clutching culture warriors immediately insisted that Nike was behind the whole thing, and being a culture warrior seems to have more power when you can blame a company for it. Nike was quick to point out that it had nothing to do with all of this, but by Monday the company decided to sue MSCHF over the shoe, making a variety of trademark infringement claims. The lawsuit gives us excellent images such as this one:

Obviously, if you buy a pair of Nikes, you can resell them. And there is the concept of the first sale doctrine that allows you to resell goods that you bought that are protected by copyright or trademark laws. However, as law professor Alexandra Roberts notes in a detailed Twitter thread, 1st sale does not apply to "materially altered" products. Of course, that doesn't mean that Nike will win either. You can argue over whether or not these shoes are actually "materially" altered, or just cosmetically so. Nike includes the ink/blood in the sole as evidence that the alterations are material:

The material alterations include at least referring to the shoe as the Satan Shoe, adding red ink and human blood to the midsole, adding red embroidered satanic-themed detailing, adding a bronze pentagram to the laces, and adding a new sock liner.

Frankly, this feels... pretty weak. There are examples of artists taking others' products -- even those protected by trademark -- and altering them for artistic purposes.

Much of the trademark claims rely not so much on the likelihood of confusion regarding the origin of the shoes, but rather on dilution -- including both blurring and tarnishment. We've argued in the past that it's insane that dilution and tarnishment are a part of trademark law, as they appear to be complete bastardizations of the purpose and intent of trademark. Trademark law -- unlike copyright and patent law -- is really supposed to be about consumer protection. It's supposed to be so that users aren't buying a product they believe is made by this reputable entity, only to be tricked as it was actually built by that unreputable entity. It was only more recently -- through a concerted effort by trademark lawyers who sought to cast trademarks as "property" and put them next to copyrights and patents -- that the law morphed into something that included "tarnishment" and "dilution."

But... those do exist, and will be a key part of the lawsuit if it moves forward and is not settled quickly (as may well happen).

MSCHF’s use of the Nike Asserted Marks and/or confusingly similar marks has caused, continues to cause, and/or is likely to cause irreparable injury to and dilution of the distinctive quality of the Nike Asserted Marks in violation of Nike’s rights under 15 U.S.C. § 1125(c). MSCHF’s wrongful use of the Nike Asserted Marks is likely to cause dilution by blurring and the whittling away of the distinctiveness and fame of the Nike Asserted Marks. In addition, MSCHF’s wrongful use of the Nike Asserted Marks in connection with satanic imagery is likely to cause dilution by tarnishment.

I am hard pressed to see how this shoe would "whittle" away at the distinctiveness of Nike's brand, but trademark law can be pretty silly sometimes. Nike also does claim that there is confusion and highlights a bunch of social media posts from very, very stupid people who actually believe the shoe comes from Nike itself.

Of course, there's a decent likelihood that MSCHF is loving every minute of this. The company has said in the past that a lawsuit would "help increase the value" of the products it releases.

Meanwhile, the Fashion Law blog has a detailed analysis of the legal issues here (written before the lawsuit was filed) that also notes that 1st sale might not apply here, given the alterations. However, it also highlights that it could make a fair use claim in response:

On the other hand, given the lengths to which MSCHF routinely goes to build a narrative around its individual drops (all of which are relatively limited in quantity), there is a chance that a fair use claim – satire, maybe? – might serve to shield it from liability for making use of the Nike logo in the process.

Lots of interesting legal questions here -- but on the whole, the entire thing just seems so... freaking... pointless. The shoes are clearly a publicity stunt. A bunch of people fell for it, and now Nike is playing into it with a lawsuit.

It's just a silly pair of shoes, people.

Hide this

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: blood, confusion, dilution, drop, lil nas x, publicity stunt, satan shoes, shoes, swoosh, tarnishment, trademark
Companies: mschf, nike


Reader Comments

Subscribe: RSS

View by: Thread


  • icon
    Samuel Abram (profile), 30 Mar 2021 @ 10:10am

    All I have to say is…

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    B Zarly, 30 Mar 2021 @ 11:16am

    Bizarrely, advocating Satan okay, but conservatism? No way.

    This IS a good measure of your "morality", how strongly you believe in what claim to be your religion. -- You may hold to "principle" and allow it, but the telling point its that you're not upset at all over promoting the enemy of all Mankind!

    Skip that, though.

    reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      B Zarly, 30 Mar 2021 @ 11:17am

      Re: Bizarrely, advocating Satan okay, but conservatism? No way.

      Slave-labor Nike vs Satan IS a tough one, but narrow it down to "dilution", and yeah, my take when read (elsewhere, you are LATE as usual) was an authorized NIKE product. SO, DILUTION.

      Now, someone who so strongly advocates "freedom of assocation" even for legal fictions called corporations should draw the line HERE.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 Mar 2021 @ 11:32am

      Most Satanists don't actually worship Satan, you know. The Satanic Temple puts it this way in its FAQ:

      Do you worship Satan? No, nor do we believe in the existence of Satan or the supernatural. The Satanic Temple believes that religion can, and should, be divorced from superstition. As such, we do not promote a belief in a personal Satan. To embrace the name Satan is to embrace rational inquiry removed from supernaturalism and archaic tradition-based superstitions. Satanists should actively work to hone critical thinking and exercise reasonable agnosticism in all things. Our beliefs must be malleable to the best current scientific understandings of the material world -- never the reverse.

      reply to this | link to this | view in chronology ]

      • This comment has been flagged by the community. Click here to show it
        identicon
        Anonymous Coward, 30 Mar 2021 @ 2:30pm

        Re:

        The greatest trick the Devil ever pulled was convincing so much of the world that he doesn't exist.

        reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 30 Mar 2021 @ 3:42pm

          Re: Re:

          Cool story bro.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 30 Mar 2021 @ 6:02pm

          Re: Re:

          The greatest trick Christians ever pulled was conflating anything that goes against the dogma of a given sect - no matter how minor - with the concept of evil, a demonic entity that only appears a handful of times in the Bible itself, and the concept of eternal torture at the hands of said entity for committing an act of evil by going against said dogma in any way.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 30 Mar 2021 @ 9:07pm

          Re: Re:

          Doesn't hold a candle to the priest's hat trick tho.

          reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 30 Mar 2021 @ 6:07pm

        Re:

        Just a minor FYI to anyone reading - they're not to be confused with the Church of Satan, which is a separate entity from the Satanic Temple.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 Mar 2021 @ 11:35am

      Re: Bizarrely, advocating Satan okay, but conservatism? No way.

      "Advocating" "Satanism". lol

      reply to this | link to this | view in chronology ]

  • icon
    OldMugwump (profile), 30 Mar 2021 @ 11:19am

    Um. They didn't say it was *HUMAN* blood, did they?

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 30 Mar 2021 @ 12:18pm

    Something something artists Andy Warhol, Richard Prince, Jeff Koons, etc...

    Wikipedia - Appropriation (art)

    Izod suing an artist for airbrushing an image a customer wanted on one of their shirts makes as much sense.

    Remove Satan & no one cares.
    This is about appealing to a loud segment of society that is always looking to stop evil, unless their leaders are doing it.

    666 shoes isn't competing.
    They bought the shoes, modified them, & sold them.
    Deadmau5's 'Nyanborghini Purracan'
    Nearly every customized car

    The lawsuit is stupid, the company should bitch slap the lawyers for wasting resources.

    Grammie bought a mass produced objet d'art, painted it & changed it around then sells it at a church bizarre... we should roll out the IP enforcers to execute a no knock raid?

    Tempest, teapot, legal performance art.
    All to make sure the evangelicals will keep buying nikes (which they would have anyways knowing they were made by slave labor which reminds them of the good old days)

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 Mar 2021 @ 9:11pm

      Re:

      There is seriously a whole cottage industry of artists who pimp out shoes. Athletes and other celebreties make a big deal of getting shoes done by them.

      Look out, them, i guess?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Mar 2021 @ 12:29pm

    Unsafe Blood?

    Don't the shoes already contain the blood, sweat and tears from those working in Nike factories?
    So is Nike arguing that the blood they put in is somehow safer?

    Maybe I just don't see a difference between the 2

    reply to this | link to this | view in chronology ]

    • identicon
      Paul B, 30 Mar 2021 @ 1:28pm

      Re: Unsafe Blood?

      A small argument can be made for linking Bio Hazards with Nike's Shoes. Blood is known bio hazard and by adding it to a shoe you have opened up the shoes sellers to liability for blood borne illness in the event that the shoe is damaged.

      The re-seller in this case may not have deep pockets, Nike has very deep pockets so really this case exists because of the choice of using a drop of blood (perhaps only in marketing) creating liability to Nike (or assumed they could be liable)

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 30 Mar 2021 @ 9:09pm

        Re: Re: Unsafe Blood?

        This is a ridiculous argument with several ridiculous premises.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 31 Mar 2021 @ 12:48pm

        Re: Re: Unsafe Blood?

        ... um, so based on what your saying, I should be able to go buy a box of cereal that's obviously been modified at the retail store and is marked as such, then I could turn around and sue the maker of the cereal because of what the store did...

        Yeah, I'm pretty sure that's not how liability works...

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Mar 2021 @ 2:00pm

    I wouldn't say that the term "likelihood of confusion" applies here. Likelihood refers to an uncertain possibility, while what we have here is a fact of confusion: multiple people have already blamed Nike for the third-party actions of MSCHF.

    Shouldn't that alone make this an open-and-shut trademark-confusion case?

    reply to this | link to this | view in chronology ]

    • icon
      JMT (profile), 30 Mar 2021 @ 3:00pm

      Re:

      "Multiple" doesn't mean many, just a tiny, vocal minority of painfully dumb Twitterers. They shouldn't be taken seriously, certainly not in any legal sense.

      reply to this | link to this | view in chronology ]

      • identicon
        Naughty Autie, 31 Mar 2021 @ 9:29am

        Re: Re:

        Well, according to the OED, 'multiple' means any number greater than one. So yes, the word does actually cover your tiny, vocal minority of painfully dumb Twitterers.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 Mar 2021 @ 4:06pm

      Re:

      You give me a product made by any company in the world, and I'll find you a person who honestly believes that product was made by Amazon.

      There are always multiple people. Always.

      reply to this | link to this | view in chronology ]

    • icon
      Tanner Andrews (profile), 3 Apr 2021 @ 4:31pm

      Re:

      multiple people have already blamed Nike for the third-party actions of MSCHF

      You might want to apply the ``moron in a hurry'' standard here.

      reply to this | link to this | view in chronology ]

  • icon
    Bloof (profile), 30 Mar 2021 @ 2:07pm

    Silly MSCHF, the only blood allowed in Nike shoes is that extracted from the forced labour they allegedly use in their supply chain.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Mar 2021 @ 7:04am

    Where are the Anti-allah, Anti-Muhammad artists, atheists and vocal skeptics?
    ...crickets...
    ...cowards...
    ...silent...

    reply to this | link to this | view in chronology ]

  • identicon
    Naughty Autie, 31 Mar 2021 @ 9:24am

    To be fair, the modified shoes do come from Nike, via MSCHF. I don't think many people would believe the modifications are courtesy of the original company, though. If they do, that's just good advertising for Nike. I fail to see what they're bitching about.

    reply to this | link to this | view in chronology ]

  • identicon
    traven, 31 Mar 2021 @ 10:00am

    Hey, at least the shoes they're selling actually exist, unlike the spate of NFTs we've seen selling for big bucks recently.

    reply to this | link to this | view in chronology ]

  • icon
    John85851 (profile), 1 Apr 2021 @ 11:45am

    Social media posts

    "Nike also does claim that there is confusion and highlights a bunch of social media posts..."

    Well, if there were some social media posts saying people were confused, then that's all the proof I need! Someone get me a team of lawyers- we have lawsuits to file!

    I intended that to be sarcasm, but it seems like too many people put too much weight in random social media posts. I saw a commercial for a TV show which had tons of quotes about how great it was. Yet if you looked quickly, the quote were from "John123" on Twiiter or "Bob345" on TikTok. Why would anyone use a quote from a random person? Why do their opinions matter?

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 8 Apr 2021 @ 9:46pm

    And to end the lawsuit they have agreed to recall the shoes & refund people.

    reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Close

Add A Reply

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Special Affiliate Offer

Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Recent Stories
.

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it
Close

Email This

This feature is only available to registered users. Register or sign in to use it.