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 Mike23.com 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?