Nike’s 16 Million dollar “Sport Changes Everything” campaign was halted through a December injunction by the Fourth Circuit. Fleet Feet previously sued Nike, claiming that the campaign would cause irreparable harm to its brand and confuse consumers that Fleet Feet has become associated with Nike. Nike now challenges the ruling, citing suppression of speech because Fleet Feet has not properly satisfyied its burden of proof.
Trademark disputes are centered around the likelihood that a reasonable
consumer would be confused by a mark’s origin of the services or goods it
designates. This is a subjective test determined on a particular case’s facts.
So the question to ask yourself is whether Nike’s slogan, “Sport Changes
Everything” would confuse you to believe that Nike is associated with
Fleet Feet. This may seem like an obvious answer, however Feet Fleet owns both the marks, “Running Changes Everything” and “Change Everything.” Fleet Feet began using the marks in 2009 and 2013 respectively, while Nike only began using its mark in May of last year.
In December, Fleet Feet persuaded a court that the marks created consumer confusion:
“The more consumers see ‘Sport Changes Everything’ before they see Fleet Feet’s similar marks, the more likely it is they will ‘come to assume’ that Fleet Feet’s products are really Nike’s or to associate all three marks with Nike . . .”U.S. District Judge Catherine C. Eagles
Now Nike is requesting an appeal, claiming the December injunction is a suppression of free speech without proper evidence to justify the injunction. Nike stated in its brief for appeal that the ruling and remedy was “extraordinary and drastic.”
Nike claims that despite millions of documented views of the “Sport Changes Everything” campaign, there has not been a single report of actual consumer confusion. Further, Fleet Feet has not supported its burden of providing evidence of actual or irreparable harm.
Judge Eagles also added in December that Nike did not provide solid evidence that it acted in “good faith” when launching the “Sport Changes Everything” campaign. Eagles added that Nike employees have worked closely enough with Fleet Feet to have adequate knowledge of their slogans.
Last week Nike said that the injunction order did not cite any actual evidence of potential irreparable harm. Nike’s grievance resides with the order’s reliance on what Nike calls “a speculative assumption that merely restated the theory of reverse confusion itself.”
Reverse confusion occurs when a junior user or second user (Nike) engages in such extensive promotion of goods under a mark that the market is swamped. Nike’s “Sport Changes Everything” was an extensive campaign, costing 16 million dollars and scheduled to run through the holidays and the Super Bowl. The extensive promotion could result in a likelihood that consumers will mistakenly believe the senior user’s (Fleet Feet) goods are associated with the junior user. In the simplest terms, reverse confusion is when a more powerful company uses the mark of a smaller, less powerful senior user of the mark.
Nike stated that during the four months of its widespread campaign, Fleet Feet could not provide any evidence that there was even a single case of a consumer confusion. Nike went on to state that in such a circumstance that lacked any evidence whatsoever the resulting ruling should have reflected a failure of Fleet Feet to meet its burden of showing actual and imminent irreparable harm.
In the next month, Fleet Feet will file its own brief in response to Nike’s claims of not meeting the burden to prove reverse confusion. The evidence of confusion Fleet Feet needs to solidify a ruling of reverse confusion you can ask yourself. Do you think “Sport Changes Everything” is associated with “Running Changes Everything” or “Changes Everything?” Would you as a consumer of sporting goods products believe Nike is now associated with Fleet Feet? Are the slogans too similar to differentiate the two companies? Are Nike and Fleet Feet collaborating, or vice versa? Nike says there is no consumer confusion; Fleet Feet says there is.