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Although a U.S. District Court has officially ordered Warren Lotas to stop selling Nike Dunk lookalikes, there's still developments taking place in the ongoing legal battle between the streetwear designer and the sportswear giant.
In a filing yesterday in the Central District of California, the Lotas brand asked the court to reconsider and/or modify its Nov. 18 granting in part of Nike's preliminary injunction. Along with seeking to move forward with replacing preorders for its Dunk lookalikes with the new Warren Lotas Reaper design (pictured above), Lotas' declaration peels back the curtain on some of the sales figures behind the controversial sneakers.
With each pair retailing for $300, Lotas says he has processed over 29,000 refunds for the Staple x WL Pigeon or WL Broccolini—both shoes fashioned after popular Nike SB Dunks—and credited an additional 7,000 preorders to be replaced with the Reaper. With around 36,000 total orders, that would bring the preorder gross to roughly $10,800,000. While the original shoes are legally barred from being sold, Lotas hopes to retain the ability to fulfill the Reaper replacements, noting that the brand stands to lose $2,100,000 in revenue if it is unable to sell them.
In a more detailed document also filed yesterday, Lotas further fights for his right to fulfill the credited Reaper orders. It mentions that a decision regarding whether the Reaper infringed on Nike trademarks was never explicitly made during November's preliminary injunction ruling because Nike did not fully brief the court on it.
Lotas takes aim at Nike's assertion of initial interest confusion, a doctrine which pertains to defendants using trademarks to capture consumer attention even though no sale is actually completed. The filing states that because customers had already purchased the infringing sneakers, what took place wasn't initial interest confusion, but source confusion. Because of this, Lotas asks that the court reconsider its findings.
"The Reaper is a radically different sneaker," reads Lotas' application for reconsideration. "It contains no Swoosh, no panels and stitching that mimic the Dunk trade dress, and has a differently-designed outsole that features the skull and scythe of the grim reaper. Nike’s effort to convert the Court’s injunction against the accused sneakers into an injunction against an entirely new shoe—where there has been no showing anyone is confused—is inappropriate and warrants an order from the court."