Last weekend, the internet broke when Taylor Swift and Brittany Mahomes arrived at the Chiefs game wearing jackets made from up-cycled Nike football jerseys. The media and fans soon realized the jackets were made by fashion designer Kristin Juszczyk, who has a history of repurposing NFL apparel and jerseys to create unique game-day outfits. Both fashion and football fans came together to support Juszczyk and began to ask how they too can wear one of her designs.
Despite the demand for these unique jackets, Kristin Juszczyk finds herself constrained by legal limitations, delving into the intricacies of trademark law. For Juszczyk to sell her upcycled clothing designs, she must face those challenges within the United States trademark law framework and the Lanham Act. Under the Lanham Act, trademark infringement consists of unauthorized use of a registered (or similar) mark that creates a likelihood of confusion, deception, or misconceptions about the source of the goods or services.[1]
Tweets and announcer's comments during the Chief's game manifested evident confusion regarding the origin of the jackets, with even Kyle Juszczyk, Kristin’s husband, clarifying on social media that the jackets were not of Nike origin. The jackets and other upcycled clothing that Juszczyk designs appear to change the form and function of the original product. On Mahomes and Swift's jackets, the registered trademark of the Nike logo was displayed on each sleeve. This could result in confusion among consumers, and if Juszczyk sold the jackets, a lawsuit could ensue.
Kristin Juszczyk 's husband's tweet showed some people were confused about the jacket's origin.
Navigating the legal landscape, certain exceptions to trademark law exist, such as the first sale doctrine. This permits the resale of products containing intellectual property without the owner's consent, provided the original owner lawfully owns the product. However, this doctrine is not absolute, as misrepresentation or material differences can nullify its protection.
For example, in 2020, Ralph Lauren filed a lawsuit against a California-based company, VDNS, for trademark infringement and counterfeiting.[2] The potentially infringing products included a hat made from Ralph Lauren swim shorts. The court decided that since the resold good was materially different from the original product, it fell outside the scope of first sale protection and infringed on Ralph Lauren’s trademark. Juszczyk’s designs similarly repurpose another item of clothing; therefore, a court would likely decide in the same manner as they did in the Ralph Lauren case.
In Kristin's effort to clarify the legal constraints, she took to Instagram, acknowledging the inability to vend the jackets currently and expressed optimism that she would be selling designs in the future. A prospective collaboration with Nike emerges as a potential solution, paving the way for legal distribution of the jackets and other similar apparel.
While Kristin Juszczyk may not be able to currently sell her designs due to trademark law, she has emerged as a leading figure in the expanding realm of women's sports apparel. The timeline for the availability of her designs in retail spaces will continue to be a matter of interest. Undoubtedly, her continued status as a viral sensation is assured, accentuated by the endorsement of notable personalities like Taylor Swift and Taylor Lautner and the anticipated appearance of Olivia Culpo this upcoming weekend.
[1] 15 U.S.C.A. § 1114
[2] Ralph Lauren Files Suit Against “Custom” Apparel Maker in Light of the Continued Rise of Fashion “Bootlegs”, Fashion L. (Jan. 16, 2020), https://www.thefashionlaw.com/ralph-lauren-files-suit-against-custom-apparel-maker-in-light-of-the-continued-rise-of-fashion-bootlegs/ [https://perma.cc/Z6RU-QFTS]
Olivia Hellerich is a 3L at New York Law School and is the President of the New York Law School Sports Law Society. She can be reached at [email protected].
