Satan’s Shoes Go to Court

L il Nas X may be a rapper, but he’s behind the most heavy-metal-looking shoes I have ever seen. He worked with the company MSCHF to create “Satan Shoes,” featuring a pentagram, an inverted cross, and a citation to Luke 10:18, a Bible verse referring to the devil falling like lightning from heaven. For good measure, they’re injected with a drop of real human blood mixed with red ink. Somewhere, the guys from Slayer (R.I.P.) must have big goofy grins plastered on their faces.

The folks at Nike do not. You see, these shoes are “custom” versions of the Nike Air Max 97: MSCHF bought some real Nikes — 666 pairs, to be exact — and dressed them up with all the satanic stuff before reselling them for $1,018 apiece. The Nike “swoosh” symbol is still very visible alongside the insults to Christianity, and the sportswear behemoth is suing MSCHF for a laundry list of trademark violations.

The shoes are hilariously stupid, but the legal issues are endlessly fascinating.

If these were just generic-looking knockoff shoes with the swoosh slapped on them, this would be a simple case. The symbol is trademarked, and you can’t sell your own product with someone else’s trademark on it. Doing so would confuse consumers and destroy the value of the trademark, which is supposed to carry the weight of the company’s reputation.

It might also be a simple case if MSCHF had simply bought some Nikes and resold them as-is. That kind of thing is generally protected under the “first-sale” or “exhaustion” rule: Companies have an exclusive right to sell their own products, but after that first sale, this right is exhausted and the buyer may sell the product he purchased to someone else.

But things get a little more complicated when you buy a legitimate copy of someone else’s product, modify it, and then resell it. In those cases, courts have to weigh a variety of competing arguments. And this could prove to be an important case, because custom versions of high-end products are a booming business, and the legal niceties are only slowly being worked out.

MSCHF itself has previously sold white “Jesus” Nikes injected with holy water, as well as ten pairs of “Birkinstock” sandals made from the remains of Hermès Birkin bags, apparently without legal repercussions. (The Birkin bags that went into those sandals cost upwards of $100,000 total.) Another lawsuit this year, however, involves a company that turns Chanel buttons into jewelry. And last year, Rolex settled a case against the customizer La Californienne, barring the latter from using Rolex’s trademarks — but not from customizing and reselling Rolex watches.

Nike’s complaint illustrates the many arguments available to the company. Most of them boil down to the idea that by selling altered shoes with obvious Nike branding, MSCHF can confuse consumers into thinking that Nike itself had something to do with this stunt. Indeed, MSCHF has confused many observers: Nike’s complaint contains a long list of social-media posts blaming the company for MSCHF’s work.

More specifically, Nike makes allegations including “trademark infringement,” meaning MSCHF used Nike’s branding without permission in a way likely to confuse buyers and the public; “false designation of origin,” meaning MSCHF created the “false and misleading impression” that the shoes are “manufactured by, authorized by, or otherwise associated with Nike”; and “trademark dilution,” meaning the shoes blur the “distinctiveness and fame” of Nike branding and tarnish it by associating it with Satan. Nike wants the shoes destroyed, it wants MSCHF to stop making so much mischief for the company going forward, and it wants damages and attorneys’ fees too.

This is a strong case, especially because Nike can point to actual examples of confusion over its role in MSCHF’s Satan Shoes. University of New Hampshire law professor Alexandra Roberts, however, has said that the case “isn’t a slam dunk for either party.” MSCHF can try a defense based on the first-sale rule, argue that its use of Nike’s branding is “fair use” or a form of expression or parody, and note that, at least among actual buyers of the thousand-dollar shoes, there might be little confusion about Nike’s involvement.

Over time, the courts will have to work out a predictable way of weighing these arguments. Unless, that is, Congress decides to write some more clarity into the actual statute books.

Meanwhile, as The Fashion Law has noted, the blood in the shoes may also create product-safety issues beyond the trademark matters being litigated here. Asked how they got the blood, a co-founder of MSCHF told Complex, “Not the best way, to say the least. . . . I could tell you; it’s just kind of graphic. But, like, not by any means a good way of doing it.”

Yet whichever way the courts go, MSCHF might come out ahead here, because both the initial controversy and the legal wrangling have prompted a bunch of media attention, the kind of advertising you can’t even buy.

You’re welcome, guys.