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Nike’s New Air Jordan 1 Trademark Faces Immediate Challenge

Thirty-six years after the Air Jordan 1 first debuted, Nike finally received the trademark for the sneaker’s design this month.

The United States Patent & Trademark Office’s (USPTO) approval was initially seen as a death knell for the bootleggers and copycats specialized in replicating the shoe’s iconic look. A petition to cancel Nike’s recently gained trademark, however, throws that into question.

Robert Lopez, a New York City store owner and frequent litigant in trademark disputes, filed to cancel Nike’s newly issued Air Jordan 1 trademark Sunday.

Lopez—or, as he has dubbed himself, TradeMarkRob—alleged Nike obtained the trademark “through fraud” and by submitting “false statements and declarations” to the USPTO. He further argued that Nike never used the registered trademark in the exact form presented in its application “EVER” and that the design “has become generic.”

Robert Lopez claims that Nike has never used the above design in this "exact form in commerce EVER."
Robert Lopez claims that Nike has never used the above design in this “exact form in commerce EVER.” USPTO

Nike is required to respond to Lopez’s petition by July 23.

The USPTO officially registered Nike’s Air Jordan 1 silhouette—as well as the designs for its Air Jordan 1 Low and Air Jordan 1 Low SE—June 1. Nike had applied for the trademarks last summer, on July 31. The USPTO published all three for opposition—an intermediate step created to allow companies and the public to object to the mark’s registration—on Dec. 15.

During this period, Vans was the only business to register interest in opposing the trademarks. The California-based corporation never filed any official objection. Instead, it simply asked for a 90-day extension of the time allowed to file a notice of opposition. Vans made its request on Jan. 14 and the USPTO granted it that same day. Vans made its request for all three trademark applications.

Lopez is only opposing the original Air Jordan 1 design.

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According to his petition, Lopez operates several retail clothing stores, including a flagship location New York City, as well as multiple e-commerce stores. He also claims to be designing and developing his own sneaker to be offered at these stores.

Additionally, Lopez runs RGL Consulting Group, a business assets management company that claims to assist “independent brands and small business owners in successfully enforcing their brand ownership rights against corporate giants.” According to RGL’s website, he has been involved in at least 46 infringement actions in federal court, including against Nike, Adidas, Supreme, Puma, Macy’s and Forever 21.

The continued registration of Nike’s trademark, Lopez argued in his petition, “will cause damage and impair his and his business management clients the ability to maintain and build further rights in their sneaker designs that incorporate a similar structure.”

Since its debut in 1985, the Air Jordan has grown to be one of most famous—and valuable—sneakers out there. In May last year, a pair of original 1985 Air Jordan 1s worn and signed by the basketball icon for whom the shoe is named broke the world auction record for sneakers when it sold for a cool $560,000. Another pair of Air Jordan 1s then smashed that record in August, changing hands for $615,000.

Next week, Christie’s and Stadium Goods will open bidding for a massive Air Jordan-themed collection. Entitled “Original Air Takes Flight: The Evolution and Influence of Air Jordan Sneakers,” the event will feature 76 different lots, including a complete set of the original 14 Air Jordan models produced during Jordan’s time with the Chicago Bulls and valued at $50,000-$70,000, and a development sample of the original Air Jordan 2 listed for $120,000-$160,000.

Nike has long owned trademarks for some of its other most famous designs, including its Air Force 1 and Dunk sneakers. The footwear giant has not shied away from defending these other trademarks, including just last year when it sued Warren Lotas for selling sneakers it said mirrored its Dunk design. Two months after Nike first filed its lawsuit, the two parties agreed to a confidential settlement barring Lotas from producing any infringing sneakers again.

Nike hasn’t won every trademark battle, however. In 2009, it sued Already LLC, the parent company of a young brand, Yums, for selling sneakers it alleged violated its trademark on the popular Air Force 1 sneaker. However, when Already filed to cancel its legal rival’s trademark, Nike dropped its suit. Despite taking its case all the way to the Supreme Court, Already did not succeed in this pursuit. It did, however, manage to obtain explicit approval from Nike to continue selling the offending footwear, something it finally took advantage of last month.