A Florida federal court has refused to let a replica (“rep”) sneaker influencer dodge liability in a Nike-initiated lawsuit over his sale of counterfeit goods. In a recent order, Judge Virginia M. Hernandez Covington of the U.S. District Court for the Middle District of Florida granted part of Nike’s motion for summary judgment, finding that the sportswear giant adequately demonstrated trademark infringement and counterfeiting in connection with some of influencer Eben Fox’s activities, while allowing other claims to proceed to trial.
The Background in Brief: Nike filed suit against Fox in December 2023, accusing the self-described “replica content creator” – known online as “Cedaz” – of selling fake Nike sneakers and using his online following to promote counterfeit goods. According to Nike, Fox created and monetized a vast replica ecosystem spanning Discord servers, affiliate websites, YouTube tutorials, and spreadsheets linking to third-party sellers, all of which, Nike claims, were designed to drive sales of counterfeit goods bearing its well-known trademarks, such as its Swoosh logo and AIR JORDAN and DUNK word marks.
In support of its claims, Nike pointed to Fox’s Discord posts offering “Nike” sneakers for sale, CashApp payment records reflecting sales of counterfeit shoes, and videos in which Fox reviewed and recommended fakes, including one in which he claimed to return a counterfeit pair of sneakers to a Nike store. Nike also alleged that Fox maintained paid partnerships with known counterfeiting logistics providers – including PandaBuy, MuleBuy, and AllChinaBuy – and used his websites and social media to promote individual sellers of counterfeit sneakers.
Fox opposed Nike’s motion for summary judgment, arguing, among other things, that Nike had failed to establish a likelihood of consumer confusion and that his online content – often edited for “shock value, click bait, and entertainment” – was “commentary rather than commerce.” He also asserted that some Discord accounts impersonating him were responsible for the counterfeit sales Nike identified, and that he had never personally sold or distributed fake Nike goods.
In reply, Nike maintained that Fox’s many Fifth Amendment invocations during a deposition, coupled with uncontroverted transaction data and screenshots, left “no genuine dispute” that he trafficked in counterfeit goods, and that his online presence across multiple channels served as a hub for replica promotion and affiliate monetization.
Early Wins for Nike, Interesting Qs Left to Answer
Siding in part with Nike on April 21, Judge Covington ruled that Nike is entitled to judgment on its claims that Fox directly infringed by selling counterfeit shoes through Discord and CashApp, and that he contributorily infringed by promoting known counterfeit sellers via his website and Discord server. The court also granted Nike’s request for a permanent injunction but declined to award statutory damages – Nike had sought $18 million – pending further proceedings.
At the same time, the court refused to grant Nike’s bid for summary judgment on its remaining claims, including those stemming from Fox’s promotional videos and partnerships with shipping platforms like PandaBuy. Those claims, Judge Covington held, hinge on unresolved factual disputes, including whether consumers were actually confused by Fox’s content and whether the shipping agents qualify as direct infringers under the Lanham Act.
The case is now headed to trial, where questions of willfulness, damages, and broader liability for “rep” culture promotion will take center stage.
The case is Nike Inc. v. Fox, 8:23-cv-02873 (M.D. Fla.).
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