In a filing yesterday in the southern district of New York, Nike lawyers formally replied to Kool Kiy’s February counterclaim, which argued that the Swoosh’s Air Jordan 1 and Dunk trademarks were “invalid and unenforceable” and that Kiy’s designs had been altered enough that they did not infringe.
“Kiy is not a ‘cutting-edge design house,’” reads Nike’s reply, referencing Kiy’s self-description from the February counterclaim. “There is nothing creative or ‘cutting-edge’ about stealing Nike’s designs and replacing the Swoosh with Kiy’s logo. Rather, Kiy is a serial copyist who has profited from its intentional theft of some of Nike’s most iconic silhouettes. Kiy’s counterclaim, littered with incorrect and irrelevant allegations, is nothing more than an attempt to distract from Kiy’s own willful infringement.”
The rest of Nike’s new filing addresses individual allegations made throughout Kiy’s counterclaim, notably its lax enforcement of other brands which Kiy argues also produce shoes that are reminiscent of the Air Jordan 1 and Dunk.
Nike admits that it has not pursued action against the Amiri Skel High-Top, Rhude Recess Hi, and Golden Goose Sky Star but denies Kiy’s suggestion that the shoes infringe upon Nike’s trade dress registration. Nike does, however, admit that Bape “sells multiple sneaker silhouettes that are near verbatim copies of Nike’s sneaker silhouettes covered by Nike’s trademark registrations” and note that it filed suit against Bape in January.
In summary, Nike argues that Kiy’s February filing “fails to state facts sufficient to constitute a claim.” It’s asking the court to dismiss Kiy’s counterclaim entirely and end the case in its favor. Nike is seeking a ruling that prevents Kiy from producing or advertising more infringing sneakers and requires the designer to provide all product and packaging to Nike for destruction. The brand is also asking for compensation for damages and related expenses.
The court is now asking that Nike and Kool Kiy submit a joint letter outlining their respective positions by March 27.