Nike Tells Skechers: "Just [Don't] Do It"

SAN FRANCISCO, CALIFORNIA - MARCH 21: The Nike logo is displayed on a window at a Nike store on March 21, 2019 in San Francisco, California. Nike will report third quarter earnings today after the closing bell of the New York Stock Exchange. (Photo by Justin Sullivan/Getty Images)
By Laura Temme, Esq. on October 02, 2019 1:18 PM

What separates a trend from a copycat? In the fashion industry, it’s hard to separate infringement from inspiration. However, for Nike, nothing can come near its patented designs. In Nike’s latest complaint against Skechers, the sportswear giant alleges that management at Skechers directs employees to copy designs by their competitors.

Same Shoe, Multiple Patents

Disputes between Nike and Skechers have cropped up many times over the years, and Nike has a history of enforcing its patents against other competitors (like last year’s fight with Puma). Plus, this isn’t Skechers’ first time at the infringement rodeo; they’ve also got a history with Adidas.

This time, there are two particular Nike designs at play: the VaporMax and Air Max 270, which feature unique air bubbles in the soles. However, although Nike only claims Skechers ripped off the designs of those two shoes, they say roughly a dozen patents have been infringed.

Nike’s intellectual property strategy mimics that of many technology companies, including Apple’s, by obtaining patents on several aspects of one shoe design. Doing this puts Nike in a position to win several separate awards for damages. However, proving infringement of a design patent isn’t always easy.

Where Is the Line?

Design patents protect the ornamental characteristics of a functional item. Unlike trademark infringement, which confuses consumers as to source, infringement of a design patent leads ordinary observers to believe the two products are the same. That’s where things get tricky; case law in this area requires two designs to be “substantially the same” for one to be infringing.

Skechers claims its designers merely take inspiration from competitors to keep up with footwear trends. However, Nike’s lawsuit claims Skechers’ business strategy (which Nike claims the company calls “Skecherizing”) relies on copying competitors' designs to gain market share.

Nike also has two other claims pending against Skechers - one alleges Skechers made knock-off Converse, a Nike subsidiary, and another for designs the Swoosh company claims copied its Flyknit sneakers. The latest suit was filed in the United States District Court for the Central District of California.

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