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Fair & Square: The Nike v. MSCHF Lawsuit Over Satan Shoes

Haley Mullins

Posted on March 31, 2021 18:01

3 users

While Nike's fame and fortune provide necessary resources to fight for trademark infringement in court, MSCHF has a good chance of claiming "fair use" and getting off scot-free.

Prank company, MSCHF, and Lil Nas X, known for his hit single "Old Town Road," have capitalized on a new wave of "Satanic Panic." Recently, the collaborators released 666 pairs of revamped Nike Air Max 97s that sport the iconic black and red colors, inverted cross, and pentagram symbols associated with the fallen angel of the bible. The shoes display a verse about Satan falling from heaven from Luke 10:18 — a parallel to the cost per pair at $1,018 — and a drop of human blood mixed into the liquid in the air bubble along the outsole.  

Beyond the Christian uproar over the "evil" and "heresy" of the shoe, Nike has now filed a lawsuit with MSCHF claiming trademark infringement. Debates over the use of intellectual property have existed for ages, and the laws regarding copyright and trademark have been written in an ambiguous way to allow courts to consider infringement on a case by case basis.

The basis of this lawsuit arises from MSCHF's use of the Nike "swoosh" logo and shoe design, which Nike claims has tarnished their brand's reputation and confused consumers into thinking that Nike officially released the controversial shoes. Some consumers, associating the shoe design with Nike's personal viewpoints, have vowed never to purchase Nike products again. Whether the multi-billion dollar shoe company will actually incur a blow to their bottom line remains unseen, but as with most scandalous news this will likely blow over and consumers will resume normal buying habits.

If Nike, Inc. v. MSCHF Product Studio, Inc. goes to trial, it will be interesting to see how the court handles the case and how the defendant justifies their product. The strongest and therefore most probable defense is that the shoe is a parody and/or social critique. Copyright and trademark law legally permit the use of protected material in cases of fair use. One of the most common examples of fair use is parody or social critique. This is permitted due to the First Amendment which grants US citizens the right to free speech and expression. The First Amendment will, undoubtedly, always supersede trademark laws.

The subject of parody regarding the so called "Satan Shoes" could be any number of things. Lil Nas X himself has referenced the relationship between the shoe design and the ways in which he has been demonized due to his sexuality.

To draw a clearer connection between the parody argument and the Nike company, however, one could argue that the drop of blood added to the revamped shoes is a critique of Nike's history of slave labor in the manufacturing of their products. This would likely be MSCHF's best argument for fair use, as it makes the use of the Nike symbol essential for the message to be understood.

While the case may seem insignificant to those of us who aren't profiting off the merch, the larger implication here is the extent to which trademark is protected and speech is free.

Haley Mullins

Posted on March 31, 2021 18:01

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Source: Upworthy

The controversial sneakers — modified Nike Air Max 97s decorated with a pentagram pendant and a reference to Luke 10:18 —...

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