THE FASHION LAW EXCLUSIVE – Nike has filed suit against a Chinese footwear manufacturer for selling sneakers that allegedly infringe a number of its patents. According to Nike’s lawsuit, which was filed in the U.S. District Court for the District of Nevada last month, Fujian Bestwinn “has made, used, sold, offered to sell, and/or imported into the United States shoes bearing designs that have the same or substantially similar overall visual impression as the designs covered by [at least 20 of] Nike’s design patents,” including creations credited to CEO Mark Parker and also Mark Miner, one of the Nike employees who jumped ship to adidas in 2014.

Portland, Oregon-based Nike alleges that despite its numerous attempts to notify Bestwinn of its infringing activities, Bestwinn continues to manufacture and sell the shoes at issue, including an array of its popular Flyknit styles. Per Nike’s complaint, in addition to sending cease and desist letters to the company beginning in 2013, it has sent representatives to the WSA@Magic trade show in Las Vegas to notify Bestwinn officials in person of the company’s infringing styles. This went on for three years to no avail.

Per Nike’s complaint: “At the [WSA@Magic trade show] held from August 18th to 21st, 2013, Nike representatives visited the Bestwinn company booth and notified Bestwinn that Bestwinn’s promotion and offer to sell certain products infringed Nike’s patents.” A year later, “at the WSA trade show held from August 17-20, 2014, Nike representatives again visited the Bestwinn company booth and observed Bestwinn offering to sell additional infringing shoes.” And still, “at the WSA show on February 16-18, 2016, Bestwinn offered for sale numerous footwear products bearing designs that are substantially the same as, if not identical copies of, the designs covered by Nike’s design patents,” such as the footwear pictured below. 

According to Bestwinn’s website, which is hosted by Chinese e-commerce giant, Alibaba (unsurprisingly, given Alibaba’s known practice of consistently hosting an enormous number of sellers of counterfeit and infringing goods), the company reports annual revenues of between $50 and $100 million. The company further reports that it exports between 91 and 100 percent of its goods, with one of its clients being American multinational discount retailer, Wal-Mart. In short: this is no small fish in the market of fake footwear. The fact alone that Nike is waging such a war against the Chinese footwear manufacturer implies that it poses a significant enough threat for the sportswear giant to expend resources on legal recourse.

In addition to an array of monetary damages (which Nike asserts “shall be trebled as a result of Bestwinn’s willful patent infringement”) and a jury trial, Nike asked the court to immediately and permanently prevent Bestwinn from manufacturing and selling the infringing footwear. On the heels of filing last month, the court awarded Nike an early victory, granting its request for a preliminary injunction and issued a seizure order, thereby allowing Nike to seize the allegedly infringing footwear from Bestwinn. Nike’s counsel in Las Vegas oversaw the seizure of footwear from Bestwinn, in connection with the FN Platform trade show (a tradeshow associated with WSA@Magic], which was held in Las Vegas last month.

As of the time of publication, Bestwinn continues to sell the allegedly infringing footwear. More to come …