On the heels of dropping a limited run of what it called “the most exclusive sandals ever made,” which combined textiles from Hermès Birkin bags with the design of Birkenstock sandals, MSCHF is preparing to debut its newest drop. Again, MSCHF is banking on a footwear offering – but instead of 10 pairs of sandals sourced from more than $122,500 worth of genuine Birkin bags, MSCHF bought 666 pairs of Nike sneakers, filled the soles of them 66cc of red ink and one drop of human blood, affixed a pentacle charm to the laces, adorned the side with “Luke 10:18,” and almost immediately caused uproar among swarms of consumers – from conservative South Dakota Governor Kristi Noem to individuals who are genuinely confused about Nike’s role in the headline-garnering new mashup.
Given MSCHF’s track record, it is not surprising that Nike is, in fact, not involved in the impending release of the “Satan Shoes,” which MSCHF made in collaboration with musician Lil Nas X. In much the same way as Nike was not affiliated with the Nike logo-adorned sneakers whose soles MSCHF filled with holy water and released in 2019, and Hermès was not in on the creation of $34,000 to $76,000 “Birkinstocks” that MSCHF released in February (and celebrities like Kylie Jenner and Future swiftly scooped up), Nike is not involved in this instance either. In a statement released to media outlet Input on Sunday, the Beaverton, Oregon-based sportswear titan set the record straight, saying, “We do not have a relationship with Little Nas X or MSCHF. Nike did not design or release these shoes and we do not endorse them.”
MSCHF – a Brooklyn, New York-based art collective founded in 2016 – has similarly stated that Nike is “not involved in this [project] in any capacity.”
Even after formally distancing itself from the “Satan Shoes,” which consist of Nike Air Max 97s sneakers that MSCHF purchased from an authorized Nike retailer and then customized before advertising them on its own site, consumers are not quite sure what to make of them. “Nike is alleging that they do not have any relationship with Lil Nas X and yet, the Satan shoe bears the Nike swoosh,” conservative political commentator Candace Owens tweeted on Sunday, shedding light on one of the key questions shared by many non-sneaker aficionados who stumble upon the buzzy shoes. Meanwhile, South Carolina-based Pastor Mark Burns stated on Twitter that the “666 [inscription] and a drop of human blood in the sole is a reason why we Christians must be prayed up ready to battle in the spirit with the Voice of the Holy Spirit.”
But before that theological battle unfolds, the widespread consumer confusion (as indicated by Owens’ tweet, among others) and in at least some cases, calls for a Nike boycott as a result of the “offensive” nature of the footwear, raise questions about whether there will be a legal sparring between Nike and MSCHF first.
Grounds for Legal Action?
While Nike has been “quick to distance itself from the shoes, pointing out that they are custom adaptations of existing products,” NBC reported this weekend, reps for the Swoosh have not been willing to comment on whether the $209 billion sneaker-maker plans to take formal action against MSCHF in order to block to sale of the 666 pairs of sneakers, which is slated to take place on Monday morning at 11am EST. This, of course, assumes that Nike has grounds to pursue legal action against MSCHF for advertising otherwise authentic sneakers that it acquired from Nike (or one of its authorized retailers), modified, and aims to sell by way of its own app.
To date, MSCHF appears to have managed to escape legal ramifications in connection with its many headline-making stunts, despite the recurring existence of potential trademark issues in so many of those instances. In the case of MSCHF’s modification and sale of the holy water-infused Nike trademark-bearing “Jesus” sneakers, the New York Times reported early last year that the sneakers went thoroughly viral – driving an eye-watering number of online searches, and garnering countless headlines and mentions on various television shows. In fact, the Times noted that “the only thing that did not happen, was a public disavowal of the shoes by Nike or the Vatican,” citing Kevin Wiesner, a creative director at MSCHF.
The lack of a previous public showdown between Nike and MSCHF might not be much of a surprise. The current reality for brands is that they can be judged (and judged quite harshly) on social media and beyond for the legal actions that they do – and in some cases, do not – take, regardless of the merit. As such, legal squabbles are not only handled in court, but in many cases, they are subject to the court of public opinion, as well. This might be part of why Nike seemingly opted to look the other way – and just let the internet hype die down – when it came to the small-run of the “Jesus” sneakers.
(Had Nike decided to take action, even in the form of a mild cease-and-desist letter, it could have run the risk of MSCHF capitalizing on that action to further market its offerings (as Warren Lotas unsuccessfully did when it tried to a “commemorative lawsuit shirt, pencil and bumper sticker” in the midst of a legal battle with Nike), thereby, prolonging the unauthorized use of its trademark and resulting in even more (hypothetical) damage to its brand.
Moreover, given the nature of social media cancel culture, where the well-stablished principles of trademark law are hardly binding legal doctrine, Nike may have also run the risk of alienating itself in the process of trying to enforce its trademark rights, particularly if consumers took the stance that in threatening/taking legal action, Nike was interfering with MSCHF’s “art.” As many brands know, attacks from legions of social media users have the power to make or break a product, and impact the brand behind it. Guess learned that this weekend after it started – and then stopped – selling a bag that looks like Telfar’s cult-favored shopping bag; as trademark attorney Ed Timberlake noted on Twitter, reflecting on the power of the social media-centric campaign against Guess, “Likelihood of confusion as to source requires more than side by side comparison – but social media posts don’t.”)
Angling for a Fight
As we noted in February when MSCHF released the Birkinstock, which does not appear to have publicly ruffled Hermès’ or Birkenstock’s feathers, the group seems to be angling for a fight. When it dropped its MSCHF x Supreme x The North Face x Adidas x Stussy x Palace x Chinatown Market x Kith x Off-White x BAPE x Nike “impossible collaboration” t-shirts last year, MSCHF co-founder Gabriel Whaley told Business Insider that “the likelihood of receiving a cease-and-desist letter from at least one of the brands included is high.” In fact, Whaley said that he was actually hoping to drive such attention, noting that formal legal pushback would “help increase the value of the product.”
Forgetting for a moment to resources and man-power associated with litigation, a threat of legal action from one of the brands it targets could transform a MSCHF product. Not only would it make for an even-buzzier story for the group and its bootleg offerings, it would potentially boost demand and price for the products, themselves. According to Business Insider, “If MSCHF was told to pull the products, their resale value would immediately skyrocket among hypebeasts looking to get their hands on a ‘banned’ piece of unofficial, limited merchandise.” No letter seems to have ever come into fruition.
Even with the foregoing in mind, this go-around might be a bit different. For one thing, unlike previous drops, which were relatively limited in terms of the number of products up for offer (MSCHF sold 20 pairs of the “Jesus” sneakers, for example), there are a greater number of “Satan Shoes” available, and the backlash against Nike appears to be quite significant among hordes of conservative consumers. This might prompt Nike to take action. Just as in the hypothetical case if the Birkinstocks, it is not impossible to imagine a case of trademark infringement by Nike – even if it did, in fact, manufacture and willingly release the underlying shoes into the market and profit from them.
While legal tenets, such as the First Sale Doctrine, traditionally prevent a trademark holder, such as Nike, from having it both ways (i.e., selling and generating revenue from a product, and then filing a trademark action against a bona fide buyer of that product for reselling it), there is a good chance that such a safe harbor does not apply here, as the changes that MSCHF made to the sneakers are arguably pretty significant. If injecting human blood into the soles of sneakers does not meet the standard for “material difference,” what does?
On the other hand, given the lengths to which MSCHF routinely goes to build a narrative around its individual drops (all of which are relatively limited in quantity), there is a chance that a fair use claim – satire, maybe? – might serve to shield it from liability for making use of the Nike logo in the process.
And on a separate trademark front, if Nike were to take the bait and initiate legal action (while simultaneously boosting MSCHF’s credibility in resale market), it would likely go a step further and also make a dilution argument on the basis that MSCHF’s use of its famous swoosh in the Satan-centric, blood-included way is likely to cause tarnishment to the Nike brand and chip away at its goodwill in the eyes of consumers.
With MSCHF’s “Satan Shoes” slated to hit the market at 11am, we might not have to wait long to see if Nike – which is currently embroiled in backlash over previous comments made in conjunction with working conditions in China’s Xinjiang region – has been working overtime behind the scenes to put a stop to the MSCHF sale. There is also a chance, of course, that the sale will go forward, and legal action will follow after the fact on trademark infringement and/or dilution grounds. (Updated: The shoes dropped on MSCHF’s app on Monday as planned and sold out within a matter of minutes).
Still yet, it is worth noting that Nike might not the only party that could be looking to put a swift halt to the release of the sneakers or to take action in a post-sale capacity. A MSCHF spokesperson said the real human blood injected into the sneakers along with the red ink had been provided by members of the art collective, telling CNN, “We love to sacrifice for our art.” This raises potential issues that go beyond intellectual property and wade into safety waters. The New York Times noted that as of Sunday, the Consumer Product Safety Commission had not revealed “whether there were concerns or legal issues about the sale of the shoes” given the fact that the soles contain small amounts of human blood.
Asked how the blood was collected for the sneakers, one of MSCHF’s founders, Daniel Greenberg, told the Times, “Uhhhhhh yeah … not [by] medical professionals,” noting, “we did it ourselves lol.”
UPDATED (March 29, 2021): And it is on … Nike filed a trademark infringement and dilution, false designation of origin, and unfair competition lawsuit against MSCHF over the Satan Shoes in a New York federal court on Monday. According to the complaint, which came just hours after Brooklyn-based MSCHF Product Studio Inc. dropped the now-sold out footwear, Nike asserts that “MSCHF is currently taking orders for shoes it refers to as Satan Shoes, which are customized Nike Air Max 97 shoes that MSCHF has materially altered to prominently feature a satanic theme,” but which it is doing “without Nike’s approval or authorization” and with which Nike is “in no way connected.” For a full look at the lawsuit, you can find that right here.