After Nike’s large litigious streak, The Swoosh’s legal battle against Kool Kiy heats up with the streetwear label filing a counterclaim against Nike stating its trade dress registrations are “invalid and unenforceable.”
Following a string of lawsuits in the last few years against the likes of John Geiger, BAPE, and plenty of other independent footwear manufacturers, Nike has just received a counterclaim in the southern district of New York by Kool Kiy, another label currently in a legal battle with The Swoosh.
Across nearly 70 pages, Kool Kiy breaks down what the label claims is an “invalid and unenforceable” trade dress by providing comparisons between models like the Air Jordan 1 and Kool Kiy’s Air Kiy 1 and showcasing examples of how their product is sold in a different manner compared to Nike’s business model. When comparing the sneaker models sold by both labels, Kiy points to the fact that Nike’s “registrations consist entirely of functional, non-distinctive features,” such as overlays near the heel and toe that help secure one's foot. Fourteen points are also listed that state differences in the designs of the Air Jordan 1 High and Air Kiy 1, including the use of the By Kiy bolt logo, a less curvy collar, and “a unique outsole with wider panels.”
Trying to distance itself from Nike's business model, Kiy also states that its shoes fall under the banner of higher fashion and that designers like themselves “offer consumers high-quality, artistically creative, interesting, and comprehensively customizable products.” Many products and colorways released by Kiy take on an “unusualness, cleverness, and [humourous]” approach like the LA Lakers’ inspired “Championship” colorway, though there are plenty of colors that mimic famous Nike designs like the “Paris” Air Kiy 1.
Other means that separate Kool Kiy from Nike include their use of pop-up shops, limited “flash sales” that offer shoes for a 15-30 minute window, and a paid membership program. Pricing and the fact that products are not sold through the same channels as Nike sneakers give credit to Kiy in regards to how the label is not looking to be confused with The Swoosh.
Like many other cases against smaller brands, Kiy also is using the defense that Nike has failed to go after other labels making products similar to its own, like Golden Goose, Rhude, and Amiri whose models somewhat resemble pairs like the Nike Terminator and AJ 1. BAPE is also mentioned, as well as some of the claims made against BAPE, with the argument that “Nike should not have any concerns with By Kiy’s brand and its footwear sales to the loyal followers and supporters that represent a tiny fraction of the millions, on millions of pairs Nike sells annually.” Considering Nike made claims against the Japanese streetwear legend that state their expansion into more retail locations is harming Nike, Kool Kiy’s use of other channels of distribution may help their case.
Kool Kiy is looking to dismiss its current lawsuit with Nike and for Nike’s trade dress that covers models like the AJ 1 to be seen as “invalid and unenforceable.” On top of this, Kiy wants Nike to pay for any and all costs pertaining to its legal team in its defense against The Swoosh. Many of the points spelled out by Kiy are somewhat reasonable and it doesn’t seem like this is a shot in the dark to get out of its current battle with Nike, however, the likely outcome here is for a settlement out of court. This is due to the fact that Nike doesn’t want to lose its trade dress if the brand were to lose its battle, meaning that other footwear labels could essentially copy Nike to a T if they no longer owned the designs.
In an update weeks following the counterclaim from Kool Kiy, Nike responded with a series of comments stating "Kiy is a serial copyist who has profited from its intentional theft of some of Nike’s most iconic designs" as well as stating the Kiy's counterclaim is "littered with incorrect and irrelevant allegations." Responding outside of the court room to Nike's response, Kiy stated in an Instagram post "They stealing my ideas & colorways" and "Y'all will never discredit this shit I built."
We’ll be keeping a close eye on this situation and other legal battles currently fought by Nike, so keep it locked to our Twitter and the Sole Retriever mobile app to stay updated on the latest in this case and the entire sneaker and streetwear world.
Images via US District Court
Summary
- Kool Kiy fired back at Nike’s claims that the brand was infringing on its trademark with a wide range of claims that allege their products and how they are sold differ from Nike’s, also claiming Nike’s trade dress is “invalid and unenforceable.”
- Arguments include the exclusivity of Kool Kiy sneakers, the “artistically creative, interesting, and comprehensively customizable products” that are offered not only by Kiy but other independent footwear manufacturers.
- The goal is to make Nike’s trade dress unenforceable, though the likely end to this case will be an out-of-court settlement as Nike doesn’t want to risk losing its trademarks and patents.
