Nike Sues Guy Who Ordered Single Pair Of Counterfeit Sneakers Over The Internet
from the nike-picks-up-the-RIAA-strategy dept
Warning: you might not want to ever buy Nike shoes again. If you accidentally buy a counterfeit pair of shoes, Nike might sue you. Via Glyn Moody, we learn that Nike chose to sue a guy who ordered a single pair of trainers online, believing they were legitimate Nike shoes. The shoes were seized at the UK border as counterfeits. Nike could have gone after the actual counterfeiters. Or it could have (perhaps more questionably) gone after some other third parties, such as the retailers who sold the shoes. Instead, it chose option 3 and sued the buyers directly. Most of the suits were settled (or, apparently, ignored).However, one customer, a Mr. E. Bateman, thought this was ridiculous, and fought it. He pointed out that he simply thought he was buying legitimate Nikes, and it seems rather ridiculous to then be sued for it. The judge noted that, under UK trademark law, the buyer's intent is absolutely meaningless:
"Whether or not the defendant believed the goods were authentic is irrelevant to the question of trade mark infringement. Whether the goods are infringing goods or counterfeit goods is an objective question. The Defendant's state of mind does not matter. Equally the Defendant's state of mind is irrelavant to the question of importation."In other words, don't ever buy Nike shoes, or you might get sued.
Of course, all this makes you wonder: what the hell was Nike thinking? We've seen how suing customers backfired badly for the RIAA and others, but this goes even beyond that. Here's a case where a guy appeared to believe he had just bought legitimate shoes, and Nike's response is to sue him, take him to court, and then win its lawsuit against him. The judge did point out that he "questioned whether the sledge hammer of these proceedings is necessary in order to crack this nut of this magnitude," and even then Nike pushed forward, claiming that the companies has "no realistic alternative to enforcing their rights this way."
Um. Sure they do: the alternative is not suing their customer. That said, at least the judge did not make Mr. Bateman pay any fine or award to Nike (even though Nike did ask for money), but rather, he has to promise not to infringe in the future, allow the shoes (still held by UK customs) to be destroyed and provide the details of where he bought the shoes. Of course, the only way he can make sure not to infringe in such a manner again is to never buy Nike shoes again, since he has no way of knowing beforehand if they're infringing or not. Nice work Nike.
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Filed Under: sneakers, suing customers, trademark, trainers, uk
Companies: nike
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Asinine
It is? This is completely asinine. The purpose of trademark law is to protect the consumer, so how does it make any sense to sue the consumer? Is the UK trademark law really worded in such a way that it's not about consumer protection or is this yet another case where big corporations have convinced the courts that trademark is really intellectual property?
Nike pushed forward, claiming that the companies has "no realistic alternative to enforcing their rights this way."
This logic is just as foolish at the idea to sue the consumer. The difficulty in enforcing a law should have nothing whatsoever to do with its applicability. "Waaa! Suing the responsible party is too hard! It's easier for us to sue some poor schlub who we think will just roll over for us." Yeah, that's really convincing.
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Re: Asinine
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Re: Re: Asinine
> on this question- if you inadvertently use
> counterfeit money because it was given to you
> as change by someone else, are you responsible
> or at fault?
As a federal agent whose particular jurisdiction is the enforcement of counterfeit currency crimes, let me reassure you that you are not legally liable for passing counterfeit that you had no reasonable way of knowing was counterfeit. There is an intent element ("knowingly") included in the statute.
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Re: Re: Re: Asinine
Thanks for the info! That is approximately in line with my initial thoughts.
However, in the case here, I wonder if it was presumably due to an oversight that the law lacks an intent element, or due to fundamental differences in criminal versus civil law. Anyone else care to chime in?
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Re: Re: Re: Re: Asinine
Here for example as far as I'm aware (not a policeman or lawyer) you can indeed be charged with passing bad currency for unknowingly using counterfeit notes or "receiving stolen goods" for buying something "dodgy" knowing or not or fall foul of "forced prostitution" laws if that happens to be your bag. And so on ("ringer" cars also I think)
To my knowledge in all cases it's incumbent on the "consumer" to ensure it;s legit - hey noone said the US had the monopoly on dumbass laws.
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Re: Re: Re: Re: Re: Asinine
Thankfully, in the United States, in civil law at least, intent IS taken into account.... if you buy something illegal without knowing it was illegal (even if it appears to be a 'too good to be true' thing), you are not held responsible.
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Re: Re: Re: Re: Re: Re: Asinine
Oh and to answer someone else's trollish point, I do indeed own a pair of Nike trainers that were bought entirely legally for $15 and another that were bought also entirely legally for £20.
The "standard" price for Nike trainers being currently around £60-£80 for the cheapest in shops in England, as previously asked, exactly what price is "too good to be true" for each shoe in their line please?
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Re: Re: Re: Re: Re: Re: Re: Asinine
You can't just say "I didn't know" and get off. You have to convince a judge or jury that it was reasonable for you not to know. If they judge that a reasonable person would have known that the gun was or might have been loaded, you're still on the hook.
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Re: Asinine
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Re: Asinine
We want to reassure you it is not our policy or intention to take legal action against customers who unknowingly buy counterfeit product for their own use. We work hard to stop the flow of counterfeit goods, to protect both the integrity of our brand and our consumers. If customs authorities seize counterfeit product, we will work within local law to have the product destroyed. In some countries, that can be done without the consent of the purchaser. In other countries, the consent of the purchaser -- or failing that, a court order -- is required. We resort to getting a court order only if the customer refuses to allow the product to be destroyed.
The article you refer to does omit some important information relevant to this particular case including the amount of counterfeit footwear the consumer had, as well as his refusal to abandon the goods. The consumer subsequently had a second shipment intercepted by customs containing additional pairs of counterfeit footwear.
We feel strongly that catching and destroying counterfeit product is the right thing to do. We recommend that everyone purchase Nike product from a trusted retailer or website. That is the best assurance that the product is genuine. Please visit www.nikestore.com to find a listing of legitimate retailers near you.
Again, thank you for your time.
Best Regards,
Jennifer
Nike
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Re: Re: Asinine
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The old Nike ad slogan was ...
Just Do It!!
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but but but
Seriously, I'm glad the judge applied common sense and helped the guy not get screwed on legal technicalities. I wonder if we can get him to come over and judge in America... we need a good dose of common sense.
I can't wait to see the fallout on this one... isn't Nike already on shaky ground from bad actions in the past?
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Re: but but but
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Re: but but but
If people don't know, then there isn't any fallout.
Sad but true.
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Re: Re: but but but
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Good advice.
If I was their competitor, I would be thrilled at this. Get the guy to do a commercial.
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Re:
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Where do you get good deals?
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Re: Where do you get good deals?
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The 4th option
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Re: The 4th option
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Re: The 4th option
Also eliminate the printing press, phones, and television. Electricity should also be banned, because these IP owners have to do SOMETHING to protect their rights, and electrons have been involved in every single counterfeiting and infringement case.
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Real Nikes
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My email to Nike
I just read that a guy, Mr. E. Bateman, ordered what he thought were a legitimate pair of Nike trainers on-line. As it turned out they were counterfeit. Nike sued him and won. Is this true?
If this is true then I can never buy your shoes again because I may not know if they are counterfeit or not. You must realize that is the only way I can protect myself from litigious companies such as Nike appears to be.
Sincerely,
Rob:-]
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Re:
Trademarks are far more sensitive. If you don't actively defend one, then it is lost.
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Nike is apparently getting an earfull about this...
"We are currently receiving higher than normal email volume. Our response could take up to 72 hours. For faster service please contact us via phone (1-800-806-6453) or chat."
I know my little missive is burning a hole in their inbox.
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Re: Nike is apparently getting an earfull about this...
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Re: Re: Nike is apparently getting an earfull about this...
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Re: Nike is apparently getting an earfull about this...
From Nike: (Jennifer) - 12/16/2010 03:32 PM
Hi,
I understand your concerns.
We do not have any information about this issue, but I would be happy to share your feedback with the rest of our team.
Best Regards,
Jennifer
Nike
PR to English translation: "I know noth--ing!"
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Punish the victim
Well, now we all know what brand to avoid when ordering online. Thanks for the warning, Nike!
Hopefully, if their inspired campaign succeeds, counterfeiting will eventually stop after Nike becomes so unpopular that nobody wants or dares to order them any more.
As for Mr. Bateman, I guess they are lucky his first name isn't Patrick, or heads might roll (to the tune of "Hip To Be Square" of course...).
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Now, in other moral lessons, another reason not to buy shoes over the internet. Not a good one, but still, add it to the list. I don't buy clothing, watches, or expensive sunglasses over the interweebs. There's just no reason to. The only stuff I order on the net is stuff I can't get here in town. Buying name labels over the net is just asking for trouble. Asian art? Sure, I do that. I can't get it here, so I go to a few web sites I've done business with before.
A pair of levis from China? You're looking to get robbed.
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Good job Nike
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What the hell?
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stupid
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Re: If the price is to good to be true then it is!
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Re:
I need your help...I bought Asics from a website that looks like a reputable website (Amazon.com), and I paid the same price I would for a pair of Asics at other websites. Can you tell me whether I bought the real ones or not? I mean, all the websites sure look the same, and they all seem to have a similar price. And most of them say something to the effect that they are authorized dealers of Asics...how am I to know that they just didn't slap the "authorized dealer" symbol on their site and charge me the same price for knock-off Asics?
Also, since you obviously seem to be more intelligent than the rest of us, can you also tell me whether I should trust Amazon.com and Apple iTunes to be authorized websites for music and movies? I really cannot tell, since they tend to look a lot like all the other unauthorized websites.
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nothing of substance from chat
W: Hello Ky
Ky: Is there a press release available for the Bateman Case?
Ky: just trying to gain all the facts before i boycott your products
Ky: all apologies if this is the incorrect medium, none of the others are functional
W: I am sorry but at this time, we have no comments on the issue. I am more than happy to take your feedback and get it to our Legal team though
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Re: nothing of substance from chat
Jeffery: Hi, my name is Jeffery. How may I help you?
Church Tucker: Hey, I've heard that you guys are suing people who inadvertently buy counterfeit Nikes. Is this true?
Jeffery: We do not have any information on this.
Church Tucker: There's a guy named Bateman in the UK who ordered a pair of what he thought were genuine Nikes, and was sued over it. I can send you a link.
Jeffery: That is ok. I am unable to shed any light on this, even if I had a link, everything I know would be what you know, based on that link.
Church Tucker: Yeah, but you're Nike. You don't know what you're doing?
Jeffery: I am going to be support for Nike.com as far as orders, products, etc.
Church Tucker: OK, so whom do I talk to in order to make sure I'm not going to be sued if the Nikes I purchase turn out to not be genuine?
Jeffery: I would send an email to corporate. That way they can advise you correctly on this issue. Let me grab you that contact information.
Church Tucker: K
Church Tucker: Do you have a contact in Legal?
Jeffery: I am going to have the information for our corporate team directly. They are going to be the ones to advise from here.
1-800-344-6453 is the number.
Jeffery: http://help-us.nike.com/app/ask/session/L3NpZC9hUjRmUExoaw%3D%3D is the email link.
Church Tucker: Thanks, Jeffery. Do pass along that I'm worried about buying Nikes at this point.
Jeffery: I would be more than happy to submit that feedback for you.
Church Tucker: Take care.
Jeffery: You too!
Jeffery has disconnected.
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Re: Re: nothing of substance from chat
"We are currently receiving higher than normal email volume. Our response could take up to 72 hours. For faster service please contact us via phone (1-800-806-6453) or chat."
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Nike has a point
This is the nature of trademark law: if you don't actively defend your trademark, you lose it. A lot of companies have lost trademarks because they were being too lax about protecting how it was used (e.g. aspirin and cellophane, once trademarked, became indefensible after falling into generic usage).
So this is the state we have today. If a trade mark or trade name is of value to a company, they will sue anyone perceived to be violating it, lest a future court case is argued over the times they *didn't* sue offenders, weakening their position.
You could argue that a case this minor would not really put their trademark at risk, but Nike's trademarks are worth (quite literally) billions of dollars. Clearly they perceive that letting minor infractions go is not worth the risk. And while they're not clearly right, they're not clearly wrong, either.
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Re: Nike has a point
To show defense of a trademark, the company must take action. But nothing says that action has to come in the form of suing the customer... the least-culpable in this whole thing (despite what AC has to say about it).
All they had to do is file a complaint against the site it was purchased from and -boom- they're defending. It doesn't have to be a successful action that results in a 'win' to qualify as defense.
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Re: Nike has a point
Oh god, not this "I heard someone mention my company name in public once so I HAD to sue them to keep my trademark!" BS again. It crops up so often and it's so bogus. Nothing requires Nike to file frivolous lawsuits against innocent people to avoid losing their trademark. That's just asinine and I wish people would stop propagating it.
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Re: Nike has a point
Indeed. Which is why the question being asked is this: why are they not going after the people who violated their copyrights and trademarks, rather than an innocent bystander? How is buying a pair of counterfeit shoes more in violation of those laws than producing, advertising and selling them?
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Re:
Was the price actually lower?
I mean if they were a good enough quality counterfeit they could have been sold for a close to normal price and not have been suspect. And even if they were really low, it could have just been advertised as being "on sale" or some bs like that.
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unauthorized website
What is an "unauthorized" website? Any website not affiliated with Nike directly? Amazon? Is eBay "authorized"?
If the price is to good to be true then it is!
How good does it have to be to be too good to be true? Tell you what: You give me data on the "too good to be true" price point for anything and everything sold over the internet, so I can make sure I don't get a frivolous lawsuit dumped on me (If you want, you can be topical and start with a list of all Nike shoe models and their respective price points). Thanks, anon troll!
Long story short he messed up and bitched about it.
Long story short, you either forgot your sarcasm tags or you're an idiot of epic proportions. I won't say publicly which one I'd put money on.
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not buying nike
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So who is Glyn Moody
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Re: So who is Glyn Moody
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Dont forget to boycott subsidiaries
-Hurley International
-Umbro
-Converse
No more Chucks, brutal.
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http://www.bailii.org/ew/cases/EWPCC/2010/10.html
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At this rate?
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Re:
Which is who? Or did you mean that you have to get permission from Nike before you can sell their stuff? If so, where did you hear such nonsense?
If you see a pair of jordan's for $10
Did he actually buy them for $10? What if he bought them for $100 and they were counterfeit? Can he still be sued? What if the seller claimed they were used? Is $10 still too little for a used pair of Nikes?
Are you still an idiot who spouts off ignorant garbage on the internet? Wait, I know the answer to that last one . . .
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Ebay if you didnt know is notorious for selling fake items. UK law states that it does not matter the mans state of mind when he purchased the shoe.
Counterfit shoes are the same as illegal downloading. They are both fake versions and you do not have the permission of the company.
Fuck Moody and fuck who he rolls with. And if youre down with Moody Fuck you too!!!
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Re:
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Re:
Again, show me where every website who makes available product has to have permission to do so. If I buy stuff in bulk, it's mine... I can resell it if I want.
And let's get something straight: Ebay does not sell counterfiet goods... they don't sell anything... users on Ebay may sometimes sell counterfeit goods. Huge difference.
Wrong! but thanks for playing. Counterfeit is trademark infringement, illegal download is copyright infringment.
Thanks for joining us here on Antique Troll-Show. And here, ladies and gentleman, we see this wonderful example of a troll-post has been finished with an ad-hominim attack. It's rare to see one in such clear and shining condition. It's a real treasure and I'm glad you brought this out... if this opinion went to auction, I'd say - conservatively - it'd be worth about ~thinks a second~ a sack of shit. Maybe two!
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Re:
When once makes a copy of software - the person/place you got the copy from still has what you copied.
In the case of shoes, if I have the shoes, the person/place I got them from no longer has that pair of shoes.
you do not have the permission of the company.
Yes master! We'd be do noting to displease you master!
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Ebay if you didnt know is notorious for selling fake items. UK law states that it does not matter the mans state of mind when he purchased the shoe.
Counterfit shoes are the same as illegal downloading. They are both fake versions and you do not have the permission of the company.
Fuck Moody and fuck who he rolls with. And if youre down with Moody Fuck you too!!!
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Yep...Off the Meds again.
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For those that want to know..
On top of that, if you go to Internic and do a Whois search on that website, it shows good old GoDaddy (which I happen to love) as the Internic-Registered owner of the domain...however..
Go to Godaddy and do a whois from them reveals the person(s) that actually hold the domain listing from them.
Now, what else can I do for you today? :)
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ALL NIKE SHOES ARE COUNTERFEIT
I used to love Rebok but their arches fell and the really high high tops are hard to find in stores.
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Here it is:
I understand your concerns.
We do not have any information about this issue, but I would be happy to share your feedback with the rest of our team.
Best Regards,
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New business opportunity?
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Where is the Use in Commerce
This makes me believe that the underlying case was not based upon trademark infringement but on a separate law that prohibited the importation of infringing goods. I assume that the consumer purchased the product from someone outside of the UK and had it shipped to him. Who was the actual importer?
Not that I have ever been a Nike fan but I know that I now will never purchase their product.
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Re: Where is the Use in Commerce
Just guessing :-)
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Nike
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They could sue me naked
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naughty nike
http://www.oxfam.org.au/explore/workers-rights/nike
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If you look at the court's judgment however, and do a bit of digging, you see that Nike was represented by a Mr. Mark Elmslie, who "heads up the contentious IP team at Hewitsons LLP in Cambridge, England".
Now seeing that Nike corporate team is experienced, and has a history of having successfully navigated worse public relations issues than this one, it is hard to imagine that a Nike executive examined the facts and said, "Yeah, I think its a great idea to go after this Bateman guy!"
Much more likely is that the Nike is guilty of failing to pay close attention to what the hired help in the UK (Hewitsons) has been up to.
Looking back at the court documents, we see that Nike received a summary judgment in their favor, but the only relief the judge granted Nike was the right to destroy that single pair of shoes, and to extract a promise from Mr. Bateman that he would never do it again. No financial penalty was imposed on Mr. Bateman.
Essentially, for their trouble, Nike was awarded a cheap pair of counterfeit shoes .
Mr. Mark Elmslie has coauthored a book on intellectual property, and has written many articles on the subject, so perhaps Mr. Elmslie would be willing to publish his explanation of how the pursuit of Mr. Bateman furthered Nike's intellectual property strategy. And since he would be representing Nike, no doubt he would be able to use this time to add to his billable hours.
In addition, I would also be curious to know if Mr. Elmslie has ever vetted his ideas about IP enforcement with the marketing and accounting departments of the corporate clients he represents to ensure that his strategies produce the desired financial gains.
In case it is not convenient for him to write here, these and other questions may be addressed to Mr. Elmslie at markelmslie@hewitsons.com
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Comment 86
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How ironic that he must pledge his intent not to infringe when intent is irrelevant.
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Inconvenient Fact
Lessons I learned from this article...
1.) Don't buy bloggers uninformed BS.
2.) If you want to buy from a company, buy from the company itself or a reputable retail outlet instead of a shady knock-off website.
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