MSCHF has not responded to repeated requests for comment about the lawsuit.
Lil Nas X isn’t named as a party in the lawsuit. Representatives for the musician did not respond to calls or emails requesting comment Monday night.
“MSCHF and its unauthorized Satan Shoes are likely to cause confusion and dilution and create an erroneous association between MSCHF’s products and Nike,” the sportswear company says in its complaint. “In the short time since the announcement of the Satan Shoes, Nike has suffered significant harm to its goodwill, including among consumers who believe that Nike is endorsing satanism.”
In its complaint, Nike said the Satan Shoes prominently feature Nike’s famous Swoosh logo.
The day after Lil Nas X released the music video, he responded to the backlash with a post saying, “I spent my entire teenage years hating myself because of the s**t y’all preached would happen to me because i was gay,” he wrote. “So i hope u are mad, stay mad, feel the same anger you teach us to have towards ourselves.
Trademark attorneys weigh in
The entire episode has all the ingredients for a potential landmark legal battle over the current limits of intellectual property law, according to multiple trademark attorneys, who say Nike has strong grounds for its lawsuit.
“Yes, Nike has a colorable case for trademark infringement and dilution by tarnishment,” said Alexandra J. Roberts, who teaches trademark and entertainment law at the University of New Hampshire’s Franklin Pierce School of Law. “Consumers may be misled to believe that the Satan Shoes are authorized or endorsed by Nike. Nike might also argue that the use harms its reputation by associating its brand with Satanic symbols.”
It’s a legal rationale that grants artists who purchase and repurpose individual copyrighted products the ability to express and profit off their own creativity, according to trademark attorney Josh Gerben of Gerben Perrott PLLC. Gerben pointed out Nike shoe redesigners like MSCHF commonly sell their work on online marketplaces.
“You’ve got 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 resell it for $1,000-3,000,” Gerben said. “This is something Nike is well aware of and has done absolutely nothing to mess with because there’s a sneaker culture here.”
The problem for Lil Nas X and MSCHF in this case, according to Gerben, is the hundreds of shoes that were sold, since individual works of art are easier to defend in court than items that have been mass produced.
“People are thinking Nike’s behind something because there’s so many of these [shoes],” he said. “It’s not just a single piece of art that some artist took a shoe and made. It’s that someone took a whole bunch of Nike shoes, customized them the exact same way and is selling them to a point in such sophisticated fashion that people think Nike’s involved.”