Image from The Undefeated
The sneaker game has become bigger than ever, with an approximate value of 79 billion as of May 2021 (https://www.fastcompany.com/90637534/how-sneakers-became-a-79-billion-business-and-an-undisputed-cultural-symbol-for-our-times), and like any large company, Nike wants to keep expanding their piece of the market, which already totals to 31 billion. In a newly filed lawsuit in the Central District of California, “The Swoosh” is attempting to put an end to the many artists who make their livelihood off of buying genuine Nike products and putting their own twist on the shoes. Customizers typically do this through creative methods such as painting, changing around the midsole of shoes (a practice known commonly as “sole swapping”), among other creative methods. In the lawsuit, the behemoth from Beaverton, Oregon alleges that an influx of custom sneakers into the market will create a classic trademark confusion as consumers will not be able to discern what is a genuine product.
This isn't the first time in the past year that we have seen a large fashion company attempt to forbid a repurposing of genuine goods, when earlier this year we saw Polo Ralph Lauren attack upcyclers who transformed old Polo apparel into hats. However, this is the first time it could have a major impact on sports. Custom shoes have become commonplace in major sports, especially in Basketball, Football, and Baseball for quite a few years now. A quick image search of “Custom Shoes NBA'' will bring up the bevy of players who don bespoke kicks on the court, including Suns Guard Langston Galloway. The NFL even has a grace week where it allows players to wear whatever crazy cleat designs they want for the benefit of charity under their “My Cause, My Cleats'' program (usually the NFL only allows for customs during warm-ups).
(Houston Texans Wide Receiver DeAndre Carter My Cause, My Cleats” in support of the Juvenile Diabetes Research Fund. NFL/Houston Texans)
So where does this go from here? If they win, Nike could corner the custom market, and make their athletes play by their rules, and shut out any non-endorsees or anyone who doesn’t want to play by their game. They could destroy a main part of the business of people who rely on their artistic visions to make ends meet - people like Mache Custom Kicks or Kickstradomis who have been paving their own paths for the last decade. A win for Nike would be a loss for creatives everywhere and could trickle to other sectors of sports business such as custom jerseys, and repurposed vintage clothing - which has seen an uptick over the last year.
As for the Athletes and Creators, they have been looking at ways to also pave their own, to create their own IP, and to control their own brand. Namely, this includes the aforementioned Galloway who launched his own brand “Ethics” which he debuted during the NBA Finals, and New York Mets Pitcher Marcus Stroman who added to his clothing line “HDMH” (standing for Hype Don’t Measure Heart) with his new cleat line “SHUGO.” which he debuted at the beginning of the 2021 MLB season. On the creator's end, Mache Custom Kicks has been putting out his own designed shoes for the past couple of years on a pre-order basis, so perhaps the bespoke route will be the next wave in order to avoid potential trademark infringement.
TOP - Ethics by Langston Galloway (ESPN)
MIDDLE - SHUGO. by Marcus Stroman (@_SHUGO on Twitter)
BOTTOM - The Mache Runner Centralia by Mache Custom Kicks (https://machecustoms.com/)
It will be interesting to watch how Nike’s attempted bust on Custom Sneakers develops over the next few weeks and months. If they get their way it could ultimately lead to more players wanting to create their own way, and more customizers to get on board with them as well.
The case is Nike, Inc. v. Customs By Ilene, Inc., 5:21-cv-01201 (C.D.Cal.)
