What Nike’s lawsuit against Lil Nas X’s Satan Shoes means for brand image and the future of the upcycling trend
When rapper Lil Nas X and streetwear company MSCHF released a new “Satan Shoe,” a pair of Nike Air Max 97s customized with human blood and pentagrams, earlier this week, Nike reacted strongly with a lawsuit alleging trademark infringement. While many artists often put their own spin on products to make more in-demand limited runs—in retail, a trend known as upcycling—by protecting its brand, Nike drew a line in the sand that could have lasting repercussions for other retailers.
“Many brands have been looking askance at upcycling—they’re not thrilled at seeing their products transformed and resold and yet they’ve bitten their tongues for two reasons,” says Susan Scafidi, founder and director of the Fashion Law Institute at Fordham Law School, noting that one reason is the “first sale doctrine,” which allows for resale of products as long as it does not create customer confusion. The second reason involves a brand’s reputation, she adds.
“No one wants to stand in the way of the circular economy right now—if things can be upcycled, resold and have a second life, customers tend to think of that as a good thing,” Scafidi says. “So, in general, they don’t want to offend their fanbase.”
In this case, however, Nike decided the fanbase for the Satan Shoes, which were released in a 666-pair drop earlier this week, was worth offending with a lawsuit.
In the complaint, filed in the Eastern District Court of New York, Nike cited consumer confusion on social media over its affiliation with the footwear collection, which are part of a promotion for Lil Nas X’s new song “Montero (Call Me By Your Name).”
“Nike files this lawsuit to maintain control of its brand, to protect its intellectual property, and to clear the confusion and dilution in the marketplace by setting the record straight— Nike has not and does not approve or authorize MSCHF’s customized Satan Shoes,” the lawsuit reads. “As an innovative brand that strives to push the envelope and do the right thing, Nike knows it may not please everyone all of the time. But decisions about what products to put the SWOOSH on belong to Nike, not to third parties like MSCHF.” In the filing, Nike asks a court to halt the distribution of the now sold-out Satan Shoes.
“Certainly, the people who queued up to buy 666 pairs of shoes were not confused, but the association between the Satan Shoe and the all-American Nike brand dirties the Nike brand, it tarnishes its sterling reputation,” Scafidi says.
According to a Nike spokeswoman, the company does “not have a relationship with Lil Nas X or MSCHF. The Satan Shoes were produced without Nike’s approval or authorization, and Nike is in no way connected with this project.”
Yet often unauthorized trademark usage can help market a brand by bringing buzz and awareness—the often used “any press is good press.” For example, comedian Trevor Wallace helped popularize White Claw hard seltzer by releasing a line of T-shirts with the brand logo and his “ain’t no laws” catchphrase, even though the shirts were later recalled by the beverage brand for trademark infringement.
Indeed, Nike may want to be careful of being too authoritarian and risk offending sneaker culture fans.
“If they feel this is Nike going too far—that this was just an art form, something cool, and people should get over it because it’s not really Satan in the shoe—then those folks in the sneaker culture may gravitate to other brands and that could hurt Nike,” says Josh Gerben, principal of Gerben Law Firm, which specializes in trademark law. “If you’re going to start limiting people’s artistic expression—if I’m an artist and making a shoe now I know Nike sues people who make shoes it doesn’t like, do I continue to use Nike shoes or do I move on to different brand?”