The New York Law Journal featured a special fashion law section on August 28 which included an article co-authored by Thompson LLP managing partner Ben Thompson and associate Robert Moorman.
The article provides an overview of the Nike Inc. v. USAPE LLC case, highlighting the potential effects and dangers of a “wait and see” approach in trademark enforcement. While the two sneaker brands, Nike and A Bathing Ape (BAPE), had been competitors for several years, Nike took no formal action to enforce or protect its trademarks until January 2023 after alleging that BAPE began increasing the scope of its infringement in the United States in 2021.
Thompson and Moorman note that “the longer a trademark owner allows a potentially infringing mark on the market without opposition, the more protection will be available to the infringing mark holder,” and that the most dispositive factor in these matters is whether there is actual confusion among consumers.
The full article “Lessons from Nike, Inc. v. USAPE LLC” is part of the New York Law Journal’s special Fashion Law section and is available here.