Nike filed its complaint against Customs by Ilene, Inc., commonly known as Drip Creationz, Monday, accusing it of counterfeiting, trademark infringement, false designation of origin, unfair competition and trademark dilution.
Drip Creationz built its name customizing Nike’s popular Air Force 1 sneakers. Several years old now, the business has fulfilled more than 500,000 orders and employs more than 50 workers, according to its website. More than 1.1 million users follow it on Instagram. If successful, it seems Nike could bring that all to end.
The lawsuit attacks Drip Creationz on several fronts. Unsurprisingly, much of the company’s grievances center around the customizer’s D1 sneaker, which it alleges infringes upon Nike’s registered Air Force 1 trademarks. Beyond the apparent resemblance, the company claims that by selling the D1 near—and oftentimes directly next to—Air Force 1s, Drip Creationz is confusing customers.
The footwear titan also suggests that the shoes the customizer claims to be Air Force 1s are actually counterfeits. The suit highlights a September TikTok video that was viewed more than 388,000 times showing apparent design flaws in a pair of supposedly genuine Air Force 1s bought from Drip Creationz. By presenting these shoes as “authentic” Nike shoes, consumers “have and will continue to associate the poor quality” with issues stemming from Nike, the complaint argues. This perception, it adds, results in consumers losing confidence in Nike’s brand and reputation for quality.
The complaint goes further, though, entering what could prove controversial territory. Drip Creationz, it seems, erred not just by trafficking in alleged knockoffs and counterfeits, but by selling customized Nikes at all.
“Nike has no desire to limit the individual expression of creatives and artisans, many of whom are some of Nike’s biggest fans,” the complaint says. “But Nike cannot allow ‘customizers’ like Drip Creationz to build a business on the backs of its most iconic trademarks, undermining the value of those marks and the message they convey to consumers.”
The more unauthorized custom sneakers sold, the harder it becomes to identify authorized collaborations and authentic products, Nike argues. Insinuating collaborations that do not exist—Drip Creationz sells shoes bearing the logos and mascots of companies like Chick-fil-A and Cheetos—and applying colorways and materials without regard for brand standards, it adds, “has and will cause substantial harm to Nike’s brand and hard-earned reputation.”
To drive its point home, the complaint points to consumers’ reactions this March to MSCHF’s Satan Shoes. “Almost immediately,” Nike claims, it began receiving criticism from consumers who believed Nike was endorsing Satanism, including some who said they never wanted to purchase Nike products again. “The damage to Nike from unauthorized ‘customizations’ is considerable,” the lawsuit insists.
“Eventually no one will know which products Nike has approved and which it has not,” the complaint claims. “Nike therefore brings this lawsuit to stop ‘customizers, like Drip Creationz and others, from making and selling illegal ‘customizations’ of Nike’s products and other products illegally using its trademarks, and to protect its brand, goodwill, and hard-earned reputation.”
Fara Sunderji, a partner at international law firm Dorsey & Whitney’s New York office with a background in trademark, copyright, clearance, prosecution, maintenance, enforcement and litigation, said the lawsuit appears to be “a good test case” for Nike—one chosen to send a message and make an example out of Drip Creationz.
“Nike clearly chose this case for a reason and will no doubt try to wave any decision or settlement it obtains for all those to see that the brand is not going to watch customizers weaken its trademarks,” Sunderji added. “Going forward this likely means trouble for large-scale Nike customizers as a business model. With a good decision in hand, this may also mean trouble for those who customize other sneaker brands for a living.”
Win or lose, Nike has a fine line to walk. Those customizing its shoes are often some of the brand’s biggest fans, Sunderji noted. And while the suit goes out of the way to insist Nike has no problem with “individual” expression, she said “it remains to be seen if sneakerheads will see the distinction Nike is trying to draw [between] individual artists customizing their own shoes (which is protected by the first sale doctrine) and those doing it for profit on Nike’s back.” If the social media response proves particularly harsh, Sunderji said she wouldn’t be surprised to see “an uptick” in collaborations with individual artists “as a nod to the sneaker community.”
Though the case that Drip Creationz’s D1 shoes infringed on Nike’s Air Force 1 trademark appears relatively straightforward, even that is not guaranteed. Nike sued the up-and-coming sneaker brand Yums for infringing on its Air Force 1 trademark in 2009, but backed off when its legal opponent counter-sued to cancel the mark. Unsatisfied, Yums’ parent company Already LLC persisted, ultimately taking the case to the Supreme Court. The justices there sided with Nike and dismissed the suit, ruling that its promise to not sue Already again meant the point was moot. After a years’ long hiatus, Yums relaunched this year.