In a sudden twist to the ongoing lawsuit saga, Warren Lotas has filed a counterclaim against Nike’s initial claims. In a move which makes us wonder slightly as to what Warren’s strategy is, it seems he is quite confident. While bits and pieces of the counterclaim catch our eyes, the highlight is Lotas contesting Nike’s trademarks over their Dunk. This is in the scope of trade dress rights, which concern the characteristics surrounding a product’s visual appearance or packaging.
While there is little question between the visual similarities between the models, the question is now about Nike’s established trademarks. We don’t expect Nike would actually have their longstanding trademarks as they have been diligently keeping them up to date. Since 1985 Nike has done well to trademark the iconic paneling as well as the word Dunk itself for footwear. Lotas has gone so far as to include co-signer Jeff Staple into his claim that Nike does not own this trade dress. He claims that the design & details of the shoes all have utilitarian functionality which are unavoidable. On top of Lotas’ claims that Nike’s designs are fair game, he claims substantial prejudice by Nike’s targeting of him.
Today, there are a host of brands that thrive off imitating more recognized brands, many times Nike itself, that exist. It brings up an interesting argument which could prove pivotal in the years to come. There is an intricacy to this that admittedly confuses us at times, though maybe that’s why this is becoming a larger issue. WL claims in the motion that “Nike has permitted rampant, unpoliced use by third parties of its purported trade dress”.
He may have some points in some of his arguments, but the only certain thing at the moment is that he won’t back down without a fight. While there is no doubting that this increases the attention on his brand, Lotas is definitely taking the bold stance to go up against the mighty Swoosh. So bold he’s even demanding them to pay his legal fees.
This is unfolding to be quite a situation, especially as Warren keeps us updated on his part via his IG, screenshots below. Keep your eyes peeled to Nice Kicks for the latest developments on this intriguing edition of David vs. Goliath.