Nike to “homage” brand Mike: Cease and desist

Posted by Rob Walker on March 17, 2008
Posted Under: Brand Underground,Fandom,Update

A while back (January 29, 2006) I did a column on a small New York-based brand called Mike, created by Scott Nelson. As I noted at the time, much about Mike’s design referenced Nike. I wrote:

Nelson is not trying to pass off his clothing as Nike goods, in the manner of a Canal Street counterfeiter. Nor is he engaging in some kind of subversive satire, like AdBusters magazine’s famous twisting of Joe Camel into a dying and bedridden Joe Chemo. “I’m strictly paying homage,” he says, adding that he doesn’t expect any trouble. He did talk to a lawyer first and says he believes he has tweaked everything enough to be on the right side of the law, but that’s not the real reason he’s confident. “If anything,” he says, “I’m helping their brands.”

My interest in Mike — or rather Mike 23 Inc. — was precisely this unusual thing – it was a kind of tribute brand, and I’d not seen anything quite like that before.

And for about two years following that column, it seemed that Nelson was correct in not worrying about trouble from Nike, because none was forthcoming.

Recently, however, Nelson got in touch to tell me that this has changed. Nike has sent him a cease and desist. He shared this with me, and as such letters tend to be, it’s fairly straightforward. Dated February 13, 2008, it says:

Nike has learned that you and/or Mike23 Inc. are engaged in the design, marketing and sale of clothing, footwear products and accessories that infringe Nike and Converse’s trademarks and trade dress… However, neither Nike nor Converse has granted you any rights to use their trademarks or trade dress. Further, your reference to and use of Michael Jordan’s name in connection with the marketing of your products violates his rights of publicity.

The letter acknowledges that Nelson has described his brand as a tribute/homage, but the upshot is the same: “Nike and Converse hereby demand that you and Mike23 Inc. cease and desist from all infringing use of any mark, logo or design that infringes Nike and Converse’s rights.” That demand includes an “orderly withdrawal of all infringing products from the market,” and that be “disabled immediately, at least to the extent that any page shows or references an infringing mark, logo or design or references Michael Jordan.”

Nelson, of course, is pretty upset. The Mike brand is largely how he makes a living, he says he’s in no position to wage a legal fight, and even if he were figures that many of his retail accounts, which also sell actual Nikes, are unlikely to antagonize the sneaker giant by selling products that it doesn’t want on the market.

I’m no lawyer, and I’m not in a position to take sides. But I will say that I’m puzzled that it would happen now. My column ran, as noted, two years ago, and even then Mike had been around for a little while at least, its products having already been highlighted in magazines such as Mass Appeal and Juxtopoz, as well as a number of streetwear/sneaker web sites.

This general issue of dealing with intellectual property and fans – and I think it’s pretty safe to say Nelson really is a Nike/Jordan fan, based on my conversations with him back when I was reporting that column – has become a thorny one for years, and the pendulum has gone back and forth. Sometimes the prevailing attitude seems to be that a tolerant attitude is better in the long run.

But lately things seem to be shifting a bit. In the last few months, Prince has reportedly gone after fans, as has J.K. Rowling. Generally brand fandom is less intense than the sort that accrues to pop stars and best-selling authors, but as I noted a little while back, Crocs sent a cease-and-desist to a fan blogger (who I’d also written about), who had to rename his site. And Nike does enjoy unusual levels of devotion that sometimes manifest in fans using the brand’s name. (The massively popular NikeTalk site, which at one point was selling T’s, comes to mind.)

Nelson, of course, is hoping that Nike will reconsider, coming around to his view that not only is his small brand not doing the company any marketplace damage, he’s indirectly helping them — particularly since the venues he sells in tend to be frequented by fairly sophisticated consumers who “get” what Mike is. The way he sees it, he’s no different than those Prince or Rowling devotees, now finding himself threatened by the very entity he most admires.

What do you think? Will Nike see it that way? Should they?

Further diversion may be found at MKTG Tumblr, and the Consumed Facebook page.

Reader Comments

Hey Everyone!!!

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Don’t expect any cut of the profits

Written By s on March 20th, 2008 @ 9:07 am

I would love it somebody made murketing T-shirts.

Then again, this is not a for-profit enterprise, so it’s a little different.

As for the profits — good luck!

Written By Rob Walker on March 20th, 2008 @ 10:05 am

Streetwear, street culture and artists have always re-interpreted iconic logos and pop culture images to connect to people. (i.e. Andy Warhol) In their eyes they are ‘re-appropriating’ these images for their subculture. It has gone on and will continue to, they will draw out emotional response and debate about originality and legality.

I may be ‘dating’ myself here, but this reminds me of a situation back in 1992-3, when SSUR put out his ‘awidas’ t-shirt. He took the adidas fleur logo added two leaves making it look like a marijuana leaf. This was also at the time when GFS (Gerb, Futura and Stash) came out with their “Phillies Blunt” tees, which I believe they later granted them a license to use the logo for a fee instead of a long drawn out legal battle because the shirts generated such a buzz for the brand. (citation needed – lol)

It was different case with SSUR, the adidas legal team not only served him with a cease and desist, but with fines based on profits from the sales of the shirt. They went so far as to hitting the retailers (like Union and 555-Soul) with the same penalty.

The c & d stated that they did not want the brand affiliated with drug culture, which is funny since two years later they produce hemp footwear and this year are releasing a ‘shelltoe’ in tobacco color with a “Philies Blunt-looking” logo on the tongue. Corporate hypocrisy!

The point I want to address is why did Nike wait so long to address this situation with Mike 23. We have to understand that most corporate giant legal teams are so far removed from sneaker/street culture and even their own product departments that one notion could be that they didn’t even know Mike 23 existed until recently. Another thing is, even if Scott was flowing product to Mike Parker or Gemo Wong and they loved it, it has nothing to do with legal department. I’m sure there were meetings discussing the Mike23 once it did get to legal and the PR ramifications that will come from this, but you have to throw rhyme or reason out of the window when it comes to legal.

I mean look, Nike sues Mike 23, Mike23 sueing New Era for the crackle print, which was used by Jordan…

Written By mp on March 20th, 2008 @ 1:07 pm

Timing will always be a big question, but I’m guessing that it has something to do with the viability of the brand (aka the fact that it’s stuck around for 2 years). No use churning out C&Ds if the brand kicks it in the first year.

Perhaps the only people at Nike who knew about Mike23 were those who actually enjoyed the product and one day he or she wore a T to the office and a Director, etc. started to ask some questions. Your guess is as good as mine, but I like having a little backstory to go along with my speculation.

Written By dave on March 20th, 2008 @ 2:55 pm

MIKE23 Is not suing New Era guys… they sent Scott a summons over a parody, which is legal…He is not interested in suing any one…get it right,,,and that so called crackle print has been around before the Jordan 3….people please do your homework before you start spouting off shit you really know nothing about….

Written By Lee Ralph on March 20th, 2008 @ 7:08 pm

MAN!!! This is horrible! I am a huge MIKE23 fan and I remember when the zip up crackle print hoodie sold out! I emailed the contacts provided to request a second run.

At least i got one. (Thanks “Wish” Atlanta)

last summer at “The Attic” (Los Angeles) all I had to besides see it was pick up my size 7 3/8 new era cap. $75 didn’t scare me away from my need to rock this hat.

As for the quality of his product… I love my mike23 hoodie. I wear it more than I like, knowing you may never see it again in your lifetime and it’s still fresh to death! My new era is just the same as all of my other 109. Great New Era quality.

I wish the best for MIKE23/Scott Nelson I hope the both of them can turn this situation into a good business opportunity.

if not may the black market flourish with MIKE23 hoodies!!!

Written By djlazyboy on March 20th, 2008 @ 8:16 pm
Written By djlazyboy on March 20th, 2008 @ 8:18 pm

So here’s the deal and no offense to anyone who has spoke their mind on here before or after me.

I dealt with Nike and they fucking suck!!!!!
I dealt with Scott a bit too…..he was way too cocky for his own good when he was launching the brand.

The sad part about this is that Nike WILL WIN….
Mike23 will fade

and people will still buy any and everything they continue to produce….

What do they do for us … the consumer….just force feed this image of YOU MUST HAVE THIS NOW OR YOUR NOT GOING TO BE COOL over and over and over again…

Quickstrike this and don’t forget my balls fuckers!

I used to be soo loyal to Nike, I would skip eating at times to wait til the next drop..

For most of the people will never understand this, but having dealt with them……they’re a pack of wolves that just does what it wants. ….

FUCK NIKE and everything else they’ve bought up…..
Mike23…..I never really cared and never lost sleep over … but good idea and they wanted to see if you’de survive or not and you were which they didn’t like anymore…

Get over it, they’ll win and you won’t
Move On…come back wearing the 45 it ain’t to play games witchu it’s t aim atchu.
Game Over

Written By FTC Soledier on March 20th, 2008 @ 8:45 pm

you know,mike23 stole from nike
everyone knows it,its really obvious.
nobody will stop wearing nikes,dont think that for a second.
nobody cares.
..if youre honest and real and original from day one,these things wouldnt happen.

Written By SPANG on March 21st, 2008 @ 12:39 am

Since it’s looking like this is close to running its course, I just want to say thanks to all for the comments — the smart observations, even from opposing points of view, way outweigh the occasional invective, and that’s great. There are a LOT of really good points made above, on all sides. Thanks!

Written By Rob Walker on March 21st, 2008 @ 2:11 pm

Finally! To me, there is, or was, nothing original about Mike. The name, the number 23, the crackle pattern etc. was just a straight copy. I never saw anything compelling about that at all. I am happy that Nike finally shut that down. This is a win for originality.

Written By Clive Pike on March 21st, 2008 @ 8:36 pm

This SUCKS. I love Mike23 and wear as much of their stuff as I can afford. I hope they don’t stop.

Written By Mike on March 25th, 2008 @ 12:13 pm

This guy was a biter and his brand was a joke. Nothing original about it at all. The Jumpman-style logo he uses is a silhouette of a Nike promo photo of MJ circulated around the time of the Jordan VIs.

If not for the hard work and originality of Nike and MJ, there would be no market for Mike 23. Nelson was a coat tail rider and brought nothing new to the table. His products were one step removed from bootlegging. Maybe he should work on new black Bart Simpson t-shirts or novel colors for the “see-thru” AFI’s you can get on Canal Street. Hey, it’s just a tribute!

Some commenters have suggested that Nike should collaborate with Nelson. Why not collaborate with a Xerox machine? The results would be the same.

Written By Stay Chisel on March 25th, 2008 @ 2:45 pm

What I find most interesting about this is the Nike SB (skateboarding division) had no qualms about using the image of the band Minor Threat to promote one of their marketing efforts.

As with many who have already posted, I’m not sure why Nike has waited so long and would taint their image with this suit. The people into Mike 23 are into Nike. Bagging on Mike 23 might turn off more than a few people to the Nike brand. Then again, I don’t think it’ll really hurt Nike’s sales, so what do they care?

Written By Bill Byrne on March 30th, 2008 @ 2:37 am

[I’m coming a bit late to the table, I admit. Apologies!]

I do think that’s weird; not that they may have “waited two years” to suddenly notice something that had been written about in the paper of record, but rather that they switched up their traditionally permissive policy toward trademark and copyright infringment at all. (I detail this in my book Unmarketable so I won’t go into it here.)

Is it a switch in Nike’s posture as hip underground-friendly icon to an acknowledgment that they are in fact a massive player in an increasingly small game, made smaller by their own expansive growth? I mean, they kind of may the fuck as well now, right? Because who’s going to stop them?

My concerns of course being—as they’ve always been—that all that mindspace Nike’s given away for free will now be recolonized. Here we go.

Written By anne elizabeth moore on April 1st, 2008 @ 11:55 am

When this guy started mike he stole most his designs from someone else,then his big ego took over and he started telling everyone that the crackle print hoodies and hats,lv print etc were his idea.And these were the designs that made his company famous.Justice has finally caught up with this liar,and it’s about time.

Written By steve on April 2nd, 2008 @ 12:34 am

man switch everything up… FUCK NIKE BRAND! do that shit… FUCK SBS! NIKE is A FUCKIN’ MONSTER! JORDANS ARE OUT! aint nobody need to pay homage to nike. yall need to start a movement! just start a whole new LINE! GAY GEAR. with a nike font. and gay colors.

Written By y0 BEE on April 2nd, 2008 @ 7:30 pm