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Executive Summaries Apr 22, 2021

Human Blood in Your Nike: Satanic Shoes or Work of Art?

Last month, a certain pair of shoes caused controversy. In fact, the said shoes are the Nike Air Max 97 model that the art collective MSCHF (an abbreviation for Miscellaneous Mischief) has modified, notably by adding liquid composed of a drop of human blood in the soles.

A reference to a passage from the Bible also appears on the shoes, verse 10:18 of the Gospel according to Luke, which reads: "And he said to them, I saw Satan falling like lightning from heaven". The collective stayed in the symbolism of hell by adding a pentagram and an upside-down cross. The shoes were promoted in collaboration with the rapper Lil Nas X, who had launched his latest song a few days before the launch of the shoes. MSCHF released 666 pairs of shoes at a price of US$1,018 each, and they sold out in less than a minute. Since then, their resale price has risen dramatically, reaching up to US$2,999.

Nike promptly filed a lawsuit against MSCHF, demanding, among other things, that it cease producing, distributing, selling and promoting any product under its trademark and claiming damages for its financial losses.

Confusion for Consumers

Nike alleged in its claim that the shoes were likely to cause confusion among consumers, who would see a link between MSCHF's products and Nike. Indeed, despite the modifications made to the shoes, the original model was recognizable, and the Nike logo was clearly visible. It seems that following the product launch, some people were really confused, such as mixed martial arts athlete Jon Jones, who announced to his followers on Twitter that he was planning to burn all his Nike shoes.

A judge ruled in favour of Nike by granting an interlocutory injunction against MSCHF, prohibiting the production and sale of satanic shoes, judging that the transformation was not sufficient to give the shoes the status of a work of art.

MSCHF, for its part, argued that it had never claimed to be associated with Nike and that the shoes were rather a form of artistic expression aimed at criticizing the fact that many well-known brands absurdly associate themselves with cultural movements.

Arguments based on the first sale doctrine could also have been raised in this action. This principle means that any user can resell a product that he or she has legally purchased, such as a used car, at will. However, overly modified products cannot benefit from the doctrine, as they become new products. Outside of the United States, this is referred to as the principle of exhaustion of rights, which is generally recognized in Canada, although it is not provided by Law. However, it is difficult to know whether the Court would have decided the issue in the same way in Canada because, even if the legal principles in trademarks are similar to those in the United States, there are important nuances. Indeed, to play devil's advocate, we could argue that the consumer is not confused when he thinks he is buying Nike shoes and he is actually buying Nike shoes.

Ultimately, the Court will not have to issue a final judgment in this matter, as an out-of-court settlement agreement has been reached between Nike and MSCHF. Under this agreement, MSCHF has agreed to offer refunds to all customers who wish to return the cursed shoes to MSCHF, in an effort to remove them from circulation. However, considering the value of the shoes, it is reasonable to believe that few customers will return their purchase. Nevertheless, Nike will certainly have accomplished its goal of distancing itself as much as possible from this initiative.

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