Nike Air position mark in danger?

Nike clearly didn’t read our article on Skechers in our newsletter.

A pity, because the interesting articles (if we may say so ourselves) can also help prevent the mistakes that other companies have made before.

The article in question was about Skechers wanting to protect the position of the visible cushioning of the Skechers shoe as a European trademark. But that attempt failed. The European Trademark Office found that the sign did not sufficiently deviate from the norm within the sector. In other words, the position mark lacked distinctiveness.

Now Nike has filed the following trademark:

The same idea, but executed slightly differently. Would that be enough? The mark was already filed in April and has not yet been accepted. That points toward a refusal. And Nike could have seen this refusal coming.

Perhaps Nike can rely on acquired distinctiveness: through intensive use, the sign has become a trademark. For the traditional Nike Air design, there’s a good argument to be made. But whether that also applies to the currently filed position mark remains to be seen. The application does not only cover the window where you can see the air, but also the surrounding area. Can that also be said to have acquired distinctiveness?

We will keep an eye on the application. Who knows, Nike’s defense (which they will undoubtedly file in case of a refusal) might bring a surprising twist.

Author: Arnaud Bos

Bio: Arnaud is trademark attorney and within Knijff responsible for the marketing & communication. Arnaud is specialist in the metaverse and music sectors and his client portfolio includes many upcoming and renowned bands. He keeps a close eye on the latest case law in the EU and will let you know when he sees remarkable applications.