In less than a month after designer Kool Kiy filed a counterclaim against Nike, the brand has responded-and the brand isn’t holding back.
Kool Kiy’s February counterclaim argued that Nike’s Air Jordan 1 and Dunk trademarks were invalid and unenforceable, and that Kiy’s designs had been altered sufficiently that they did not infringe in a filing yesterday in the southern district of New York. Nike lawyers responded yesterday.
In response, Nike states that Kiy is not a “cutting-edge design house,” referring to Kiy’s self-description in the February counterclaim. “Stealing Nike’s designs and replacing the Swoosh with Kiy’s logo is not creative or cutting-edge. Rather, Kiy has profited from its intentional theft of some of Nike’s most iconic silhouettes. There is nothing more than an attempt to distract from Kiy’s own willful infringement in Kiy’s counterclaim, which is littered with incorrect and irrelevant allegations.”
A comparison of the Kool Kiy Reves and the Air Jordan 1 from Kool Kiy’s February counterclaim. This image is courtesy of the US District Court
As part of its new filing, Nike addresses individual allegations raised in Kiy’s counterclaim, including its lax enforcement of other brands that produce shoes similar to Air Jordan 1s and Dunks.
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In response to Kiy’s suggestion that the Amiri Skel High-Top, Rhude Recess Hi, and Golden Goose Sky Star infringe upon Nike’s trade dress registration, Nike admits that it has not pursued any action against those shoes. The company does, however, admit that Bape sells a number of sneaker silhouettes that are almost verbatim copies of Nike’s sneaker silhouettes and that it filed suit against the company in January.
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A summary of Nike’s argument is that Kiy’s February filing “fails to state facts sufficient to constitute a claim.” It asks the court to dismiss Kiy’s counterclaim completely and end the case in its favor. In order to prevent Kiy from producing or advertising more infringing sneakers, Nike is seeking a court order requiring the designer to destroy all product and packaging. In addition, the brand is seeking compensation for damages and related expenses.
By March 27, Nike and Kool Kiy must submit a joint letter outlining their respective positions.