The Kicks You Wear, Vol. 218 — Confusion, explained with Kenneth Anand of SneakerLaw
Nike keeps talking about confusion in the marketplace, so we're going to find out what that means.
What’s good, family! Welcome back to the Kicks You Wear. Thank you so much for rocking with me today. I appreciate y’all.
We have an absolute treat of a conversation today so I won’t waste time. Here’s the referral button. Let’s get to 5k soon!
Alright, let’s jump in.
John Geiger vs. Nike will change sneakers forever
Nike has filed lawsuits against so many independent designers over the last couple of years. MSCHF and Lil Nas X, Warren Lotus, Just Succ It. Resistance from those parties has been mostly minimal. And who could blame them? It’s Nike. The Swoosh. Their pockets run deep. Their lawyers are thorough. That’s not an easy battle to win.
John Geiger seems up to the challenge though. At least, according to his lawyer Kenneth Anand (and his tweets), he’s ready to go.
Anand, who is leading Geiger’s defense, is the former general counsel for Kanye West’s YEEZY brand and the co-creator of Sneaker Law, which is a big book thoroughly charting the choppy waters of the sneaker business.
Where we’re at: Nike is suing Geiger over his signature GF-01 — a sneaker paying homage to the Air Force 1.
The brand says Geiger’s shoe infringes on the trade dress of the Air Force 1 and brings confusion to the marketplace.
Geiger is countersuing with claims that Nike is selectively enforcing its AF1 trade dress and that the trade dress is unenforceable because the standards are unclear. They’re trying to invalidate the AF1’s trade dress completely completely.
That’s a lot to take in, right? The stakes are high. But no worries — we’ll break it down for you here.
Anand was nice enough to give yerboi some time. And we combed through the ins-and-outs of the case, what the concept of “confusion” is and why it’s being incorrectly claimed in this case.
A conversation on John Geiger and marketplace confusion with Kenneth Anand of Sneaker Law
The following is my conversation with Kenneth Anand of Sneaker Law, which has been lightly edited for brevity. Read to the end for a treat.
The Kicks You Wear: So you’re working the Geiger case, obviously. And at the center of that is what Nike keeps calling confusion in the marketplace. So I want to break down for my readers where that comes from and what it means. Where does that come from?
Kenneth Anand: So at the base of it all, Nike has a trademark. And there’s a subset of trademark called trade dress which protects certain elements of the overall look and feel of an object, right? For example, Tiffany Blue is a trade dress. The red bottom on Louboutin is a trade dress. Nike is claiming that their trade dress over certain elements of the Air Force 1, meaning the bottom sole, the stars on the sole, the wavy lines on the side panel, and the eyestays. These are all part of their trade dress of the Air Force 1.
And they’re claiming that registered trade dress makes it impossible for someone like John Geiger to create a shoe that looks like the Air Force 1. So they sue John Geiger by adding him to a complaint that was already filed against Lala Land.
So Geiger says, look, this is a case I have nothing to do with. I’m not making Warren Lotus Dunks. My shoe is very different. I have all these different elements from my shoe. Not only that, I have no swoosh on my shoe. So there’s no confusion.
KYW: And that makes a big difference?
KA: If you walk into a store and you see these two shoes next to each other, you’re not going to think that the left one is a Nike with no swoosh on it. And it’s not even just that, you’re not even seeing them sold in the same marketplace. Geiger is direct to the consumer only if you have a password and it’s available at select luxury retailers overseas.
KYW: So that’s the counter to confusion in the marketplace?
KA: We made the argument that this shouldn’t be brought because the shoes are not confusingly similar. And then, number two, Nike hasn’t policed their trade dress against so many other “offenders” that they can’t go after Geiger because they don’t like his shoes.
They’ve been sitting on A Bathing Ape (BAPE) since the early 2000s. They’ve been sitting on Tommy Hilfiger, Walmart, Yums…all these. And we listed them all in our counterclaims.
KYW: That’s a point I wanted to get to. We’ve seen models get much closer to the AF1 than this. What’s the difference here in your eyes?
KA: My personal take on this is that Nike does what Nike does. They have their IP to protect. But they’re going too far. I understand the argument that you should do something original — but that’s opinion. That’s not law, that’s opinion. They could’ve said that to Virgil Abloh when he just took a swoosh off and taped it back on. But he transformed it into something really dope.
The difference is he had a license to do that from Nike. So here, John Geiger who had worked for Nike, designed for Nike, who had given a lot of value to Nike with the Misplaced Checks, he’s just paying homage to his roots by redesigning a silhouette that he loves but doing it in his own way. They thought it was infringement, they sued him, and now their arguments — we believe — don’t stand up legally.
KYW: Part of the counterclaim says you all want to knock Nike’s trade dress on the AF1 out of play…
KA: Yes. Not only are we defending ourselves against the infringement and saying there’s no likelihood of confusion and Nike is selectively prosecuting their own trade dress, but we’re also petitioning to cancel the trade dress.
KYW: What part does that play in this?
KA: It’s an offensive move. It’s like, you can sue us. But if you sue us we’re going to sue you again because you’re not policing your mark properly, you’re not enforcing it, and it’s not valid for these various reasons.
KYW: How similar is this to what Yums did back in the 2000s?
KA: They did this way back. And Nike, instead of taking the chance on their trade dress being invalidated, decided to enter into a consent agreement with Yums to allow Yums to make their sneaker with no issue and that was what went up to the Supreme Court.
So Nike has been here before. They’ve had their trade dress threatened before. We’re just doing it again. We’re saying ‘Look, you’re trying to pick on John Geiger. And that’s the wrong dude.’
John Geiger is now learning that lawsuits are not a reason to fold. They’re not a reason to crumble. In fact, if you have the right team on your side you can feel stronger and more empowered to fight back. And now people are reaching out to him because of the way he’s handled this and saying ‘Not only are you plugged in, but you’re built for this shit.’
KYW: For me, that’s been the coolest thing to see. The reception that he’s gotten through this. It seems like folks from around the industry who’ve encouraged him to keep going. Have you seen that?
KA: You’ve got the Nike stans that hit him in the comments and say “oh, you know, another Air Force 1.” And, look, I get it. I was a Nike head from day 1 until I went to work with Yeezy and couldn’t wear a single pair on the job. But, you know, I don’t hate Nike. I just don’t agree with their lawyers. And to go after a creative like Geiger in this way is an abuse of power.
KYW: We’re in a space where there are so many independent creatives and Nike’s gone after a number of them including folks like Geiger with distinct models. This case could set a huge precedent, right?
KA: Right.
KYW: I always say this. If we didn’t see Dapper Dan slapping labels on the Air Force 1 in the 80s would we see the Virgil joints they just dropped? Right now, it feels like the potential for what could come in the future kind of rides on this. Do you all see it that way?
KA: Yes, absolutely. That’s why I took the case. Because I’m all for independent creation. I rock my Nikes because that’s in my DNA. But this is a revolutionary time for sneaker creation. Now, it’s more and more possible for you to make shoes on your own. You can create molds with technology. Going to your own manufacturer. This is what we talk about with Sneaker Law. We’re trying to empower people to be the next great creators and business people so there can be more companies on the come up.
It’s about fighting for people that want to do their thing and can’t get bullied by these monopoly companies that want to shut down everybody. Because the next dude will come along and say ‘Geiger got squashed so I will, too.’ And then, nobody fights. This dude is putting his money on the line to fight for everyone else.
KYW: As far as an endgame for you all, what would be satisfactory? Would a settlement be OK? A consent agreement?
KA: I would love to be at trial against Nike while holding a pair of GF-01s in front of a judge. That would be fire. But, honestly, I have to do what’s best for my client. The next steps of this suit are grueling, expensive, long, and drawn out.
We’re talking depositions and summary judgment motions and all this stuff. And so if there’s a possibility to settle that makes sense for both parties, I’m down for it. I don’t want to see John deal with more stress.
But he’s almost so impervious to this now. He’s just like ‘I’m down. I’m ready to roll.’
That was our conversation. Anand also dropped a gift off for KYW readers: Use code KYWSL2022 for 25% off when you purchase a copy of Sneaker Law here. If you’re a fan of this newsletter, you’ll definitely be a fan of this book.
JFGs “Conversations Among Us” spot is incredible
Man. Everything about this visual is perfect. From Kawhi Leonard not saying a single word here to the head nods and literally all the memes we’re getting out of this.
Just phenomenal work from JoeFreshGoods in putting this together.
It’s dope to have a collection that honors the unspoken language that exists between Black folks. This is very cool and an amazing way to pay homage to our culture.
These are probably dropping soon. Like, maybe this week soon. So be on the lookout.
What’s droppin, bruh?
Nike SB Dunk “Polaroid” — Tuesday, April 12
ASICS UB3-S GEL-Nimbus 9 — Thursday, April 14
Nike Dunk Low “Fossil Rose” — Friday, April 15
Union LA Air Jordan 2 — Friday, April 15
Air Jordan 7 “Sapphire” — Saturday, April 16
Thank you so much for rocking out with me today, family. I appreciate you! We’ll chat again on Wednesday.
Housekeeping: After Friday’s newsletter, KYW will be out until May 2. It’s Easter, I have a wedding to go to and we’re doing some SD stuff I’d like to focus in on. Don’t worry. We’ll be back soon after.
Peace and love. Be easy. Be safe. Be kind. And we out.
-Sykes 💯
I think Nike has a lot of good points considering their history with John Elliot (his regular white on white AF1's with the double tongue and lunar sole are awesome) and other luxury designers to create "confusion" but the fact that they haven't gone after Hender Scheme and their myriad Nike tributes throws that out the window, too.
Great interview! It’s refreshing to see a lawyer talk about their case in detail and explain the intricacies of the law in plain language.