Nike Inc v Super Star Int'l - Complaint

8/13/2019 Nike Inc v Super Star Int'l - Complaint

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COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

James B. Hardin (State Bar No. 205071)[email protected]

Tyler J. Woods (State Bar No. 232464)[email protected]

Tu-Quyen Pham (State Bar No. 260864)[email protected]

NEWPORT TRIAL GROUPA Professional Corporation4100 Newport Place, Suite 800

Newport Beach, CA 92660Tel: (949) 706-6464Fax: (949) 706-6469

Attorneys for Plaintiff NIKE, INC.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

NIKE, INC.,

Plaintiff,

v.

SUPER STAR INTL, INC., and SAILIU,

Defendants.

Case No.

COMPLAINT FOR DAMAGES ANDINJUNCTIVE RELIEF FOR:

(1) TRADEMARK INFRINGEMENT INVIOLATION OF 15 U.S.C. 1114;

(2) UNFAIR COMPETITION INVIOLATION OF THE LANHAMACT, 15 U.S.C. 1125(a);

(3) TRADEMARK DILUTION INVIOLATION OF 15 U.S.C. 1114;

(4) COMMON LAW TRADEMARKINFRINGEMENT AND UNFAIRCOMPETITION;

(5) STATUTORY TRADEMARKDILUTION IN VIOLATION OF CALBUS. & PROF. CODE 14247

(6) UNFAIR COMPETITION INVIOLATION OF CAL. BUS. & PROFCODE 17200 ET SEQ.; AND

(7) PATENT INFRINGEMENT INVIOLATION OF 35 U.S.C. 271

Jury Trial Demanded

Case 2:14-cv-00759 Document 1 Filed 01/31/14 Page 1 of 20 Page ID #:1


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- 1 -COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

COMPLAINT

Plaintiff, NIKE, Inc. (NIKE), for its complaint against Defendants, Super Sta

Intl, Inc., and Sai Liu, (collectively, Defendants), based on provisional knowledge

and on information and belief as appropriate, alleges as follows:I. The Parties

1. NIKE is a corporation organized and existing under the laws of the State oOregon with a principal place of business at One Bowerman Drive, Beaverton, Oregon

97005.

2. On information and belief, Super Star Intl, Inc. (Superstar), is acorporation organized and existing under the laws of the State of California with a

principal place of business at 1935 Santa Anita Ave., South El Monte, California

91733.

3. On information and belief, Sai Liu is an individual and the President andregistered agent of Superstar. On information and belief, Sai Liu is the alter ego o

Superstar and controls its selection, importation, and sales of footwear designs

including those relevant to this dispute.

II. Jurisdiction and Venue4. This is an action for trademark infringement, false designation of origin

unfair competition, trademark dilution, and patent infringement. This action arise

under the Trademark Act of 1946, 15 U.S.C. 1051, et seq. (Lanham Act), California

Business and Professions Code Sections 14247 and 17200, et seq., federal common

law, the common law of the state of California, and U.S. Patent Laws, 35 U.S.C

271, 281, 283-285.5. This Court has subject matter jurisdiction over this action pursuant to a

least 15 U.S.C. 1121(a) and 28 U.S.C. 1331, 1338(a) & (b), and 1367(a).

6. On information and belief, Defendants have and are continuing toadvertise, offer for sale, and sell infringing and diluting footwear products to customers

including customers in the State of California and in this District.



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7. On information and belief, this Court may exercise personal jurisdictionover Defendants based upon their contacts with this forum, including at least having a

principal place of business here, regularly and intentionally doing business here, and

committing acts giving rise to this lawsuit here.8. Venue is proper in this judicial district pursuant to at least 28 U.S.C

1391(b) and (c).

III. General Allegations NIKEs Trademarks and Design Patents9. For many years, NIKE has continuously engaged in the development

manufacture, and sale of a wide array of athletic and fashion footwear, apparel, and

sports equipment. NIKE has taken many steps to protect its innovative designs

including its footwear-related designs. For example, NIKE owns a variety of common

law and federal trademark rights relating to the source identifying features of it

footwear designs. Additionally, NIKE owns numerous United States design patent

covering many of its footwear designs.

A. NIKEs Air Force 1 Trademarks10. Relevant to this dispute, in 1982, NIKE designed the Air Force 1 shoe

Since then, NIKE has produced the Air Force 1 shoe in more than 1,700 different color

combinations and has sold the shoe in all fifty states and around the world. The design

of the Air Force 1 is one of the most popular shoe designs of all time, as evidenced by

the fact that NIKE sells tens of millions of pairs of shoes bearing the Air Force 1 design

every single year.

11. The Air Force 1 shoe design is also is also the subject of widespread andunsolicited public attention. This publicity extends from acclaim in magazines andnewspapers to appearances in movies, television shows, and even hit songs dedicated to

the shoe. In particular, the Air Force 1 shoe design has been featured in numerou

newspaper, magazine, and Internet articles that extol its presence throughout American

culture and/or that celebrated the shoe designs twenty-fifth anniversary in 2007

Example articles and website images illustrating the fame and unsolicited publicity o



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the Air Force 1 are attached to this Complaint as Exhibit A.

12. The upper, midsole, and outsole of the Air Force 1 shoe design have adistinctive and non-functional configuration that identifies to consumers that the origin

of the shoe is NIKE. Illustration 1 below shows the iconic Air Force 1 shoe design.

Illustration 1: The Air Force 1 Shoe

13. NIKE owns federal trademark registrations for the design of the Air Force1 shoe. For example, NIKE owns U.S. Trademark Registration No. 3,451,905

registered June 24, 2008, for the design of the stitching on the exterior of the shoe, the

design of the material panels that form the exterior body of the shoe, the design of thewavy panel on the top of the shoe that encompasses the eyelets for the shoe laces, the

design of the vertical ridge pattern on the sides of the sole of the shoe, and the relative

position of these elements to each other as generally shown in Illustration 2 below. A

copy of Registration No. 3,451,905 (the 905 Registration) is attached to this

Complaint as Exhibit B.



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14. NIKE also owns U.S. Trademark Registration No. 3,451,904, registeredJune 24, 2008, for the design of the tread on the sole a shoe as generally shown in

Illustration 3 below. A copy of Registration No. 3,451,904 (the 904 Registration) i

attached to this Complaint as Exhibit C.

15. The 904 and 905 Registrations have become incontestable, and constituteconclusive evidence of the validity of the trademarks and of NIKEs ownership of and

exclusive right to use the trademarks.

16. NIKE also owns common law trademark rights in the upper, midsole, andoutsole of the Air Force 1 shoe design as a result of NIKEs continuous and exclusive

use of the design for more than thirty years. NIKEs federal and common law

trademark rights in the designs of the Air Force 1 shoe are collectively hereafter

referred to as the NIKE Marks.17. As a result of NIKEs long-term, exclusive, continuous, and substantia

use, advertising, and sales of shoes bearing the NIKE Marks, and the widespread

publicity and attention that has been paid to the NIKE Marks, the NIKE Marks are

famous and have acquired substantial secondary meaning in the marketplace a

consumers have come to uniquely associate them as a source identifier of NIKE.

Illustration 2: the 905 Registration Figure

Illustration 3: the 904 Registration Figure



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B. NIKEs Asserted Design Patent18. NIKE is renowned for creating highly sought after, ornamental footwea

designs. In 2011, NIKE introduced its NIKE Free Run +2, an image of which appear

in Illustration 4 below.

Illustration 4: the NIKE Free Run +2 Shoe

19. Because its ornamental footwear designs are often copied, NIKE takesteps to protect its designs. To that end, on August 16, 2011, the United States Paten

and Trademark Office issued United States Design Patent No. D643,202 (hereafter, th

202 Patent or Asserted Patent) to NIKE (attached to this complaint as Exhibit D)

An exemplary view of the claim of the Asserted Patent is displayed in Illustration

below. NIKE owns all right, title, and interest in the 202 Patent and the202 Patent i

presumed to be valid.

Illustration 5: the Asserted Patent Claim

General Allegations Defendants Unlawful Activities

20. On information and belief, Defendants have and are continuing tadvertise, offer for sale, and sell footwear bearing confusingly similar imitations of th



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NIKE Marks, as well as footwear bearing designs that are substantially similar to the

Asserted Patent (collectively, the Offending Products).

21. Illustration 6 below demonstrates Defendants unlawful activity bycomparing examples of the NIKE Marks and the Asserted Patent to representativeimages of Offending Products.

Illustration 6: Example NIKE Marks or Asserted Patent (left),

Representative Offending Product (right)

905 Registration Figure

Air Force 1 Shoe DesignOffending Product



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Illustration 6: Example NIKE Marks or Asserted Patent (left),

Representative Offending Product (right)

904 Registration Figure

Air Force 1 Shoe Design

Offending Product

Asserted Patent Claim Offending Product

22. NIKE used the NIKE Marks extensively and continuously beforDefendants began selling, offering to sell, distributing, or advertising the Offendin

Products.

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23. NIKE never authorized Defendants to sell, offer to sell, distribute, oadvertise the Offending Products.

24. This is not the first time Defendants have infringed NIKE intellectuaproperty rights, or the intellectual property rights of Converse Inc. (Converse), awholly owned subsidiary of NIKE. Over the past eight years the Defendants, which on

information and belief have operated under a variety of company and/or trade names

including JeAir and K-Air, have established a clear pattern of willful infringements. To

that end, between February 2006 and February 2012, NIKE and Converse served

Defendants or their predecessor businesses with seven cease and desist letters relating

to infringement of eleven NIKE design patents and several Converse trademarks.

25. Because Defendants refused to stop infringing NIKE and Converseintellectual property rights, on June 15, 2012, NIKE and Converse filed civil action

number No. 12-5240 in the Central District of California against the Defendants, among

other parties. Defendants ultimately admitted their infringements and consented to

entry of judgment in favor of NIKE and Converse on every allegation of the complaint

(See CaseNo. 12-5240, Dkt. No. 90). The Court entered the consent judgment and a

permanent injunction on May 15, 2013. (Id.).

26. Several months later, on August 21, 2013, NIKEs representativesobserved Defendant Superstar at the World Shoe Association (WSA) trade show in

Las Vegas offering to sell shoes identified as model M853 bearing the design covered

by the 202 Patent. The same day, NIKEs counsel provided a copy of the 202 Paten

to representatives at Superstars WSA trade show booth. Nevertheless, on October 8

2013, a private investigator discovered Superstar offering to sell the same design at itsretail store in South El Monte, California.

27. On information and belief as evidenced by the facts and circumstancealleged above, Defendants infringements have been intentional and willful, and

manifest a deliberate and continuing pattern of infringing Plaintiffs trademark and

design patent rights.



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Count I: Trademark Infringement under Section 32(1) of the Lanham Act

15 U.S.C. 1114(1)

28. NIKE re-alleges each and every allegation set forth in paragraphs 1through 27 above, inclusive, and incorporates them by reference herein.

29. Defendants offers to sell, sales, distribution, and/or advertisement oOffending Products violates Section 32(1) of the Lanham Act, 15 U.S.C. 1114(1).

30. The NIKE Marks are entitled to protection under both federal and commonlaw. The NIKE Marks include U.S. Trademark Registration Nos. 3,451,904 and

3,451,905. These trademark registrations have become incontestable and constitute

conclusive evidence of the validity of trademarks and of NIKEs ownership of and


31. The NIKE Marks have distinctive appearances using unique and nonfunctional designs. NIKE has extensively and continuously promoted and used the

NIKE Marks for decades in the United States and worldwide. Through that extensive

and continuous use, the NIKE Marks have become famous and well-known indicators

of the origin and quality of NIKE footwear. The NIKE Marks have also acquired

substantial secondary meaning in the marketplace. Moreover, the NIKE Marks became

famous and acquired this secondary meaning long before Defendants commenced thei

use of the NIKE Marks and colorable imitations thereof in connection with the

Offending Products.

32. Defendants use of the NIKE Marks and colorable imitations thereof islikely to cause consumer confusion as to the origin and/or sponsorship/affiliation of the

Offending Products, at least by creating the false and misleading impression that theOffending Products are manufactured by, authorized by, or otherwise associated with

NIKE.

33. Defendants use of the NIKE Marks and colorable imitations thereof hacaused and, unless enjoined, will continue to cause substantial and irreparable injury to

NIKE for which NIKE has no adequate remedy at law, including at least substantial and



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irreparable injury to the goodwill and reputation for quality associated with the NIKE

Marks.

34. On information and belief, Defendants use of the NIKE Marks andcolorable imitations thereof has been intentional, willful, and malicious. Defendants

bad faith is evidenced at least by the similarity of the Offending Products to the NIKE

Marks, as demonstrated in Illustration 4 above, and by the Defendants long-standing

and continuing disregard for NIKEs intellectual property rights.

35. NIKE is entitled to injunctive relief, and NIKE is also entitled to recoveDefendants profits, actual damages, enhanced profits and damages, costs, and

reasonable attorney fees under 15 U.S.C. 1114, 1116, and 1117.

Count II: False Designation of Origin/Unfair Competition under

Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a)


37. Defendants offers to sell, sales, distribution, and/or advertisement oOffending Products, in direct competition with NIKE, violates Section 43(a) of the

Lanham Act, 15 U.S.C. 1125(a).



conclusive evidence of the validity of trademarks and of NIKEs ownership of and


39.

The NIKE Marks have distinctive appearances using unique and nonfunctional designs. NIKE has extensively and continuously promoted and used the







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Offending Products.

40.

Defendants use of the NIKE Marks and colorable imitations thereoconstitutes a false designation of origin that is likely to cause consumer as to the origin

and/or sponsorship/affiliation of the Offending Products, at least by creating the false

and misleading impression that the Offending Products are manufactured by, authorized

by, or otherwise associated with NIKE.

41. Defendants use of the NIKE Marks and colorable imitations thereof hacaused and, unless enjoined, will continue to cause substantial and irreparable injury to



Marks.






reasonable attorney fees under 15 U.S.C. 1125(a), 1116, and 1117.

Count III: Dilution under Section 43(c) of the Lanham Act

15 U.S.C. 1125(c)


45. Defendants offers to sell, sales, distribution, and/or advertisement oOffending Products violates Section 43(c) of the Lanham Act, 15 U.S.C. 1125(c).

/ / /



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conclusive evidence of the validity of trademarks and of NIKEs ownership of andexclusive right to use the trademarks.

47. The NIKE Marks have distinctive appearances using unique and nonfunctional designs. NIKE has extensively and continuously promoted and used the







Offending Products.

48. Defendants use of the NIKE Marks and colorable imitations thereof islikely to cause, and has caused, dilution of the famous NIKE Marks at least by eroding

the publics exclusive identification of the famous NIKE Marks with NIKE and by

lessening the capacity of the famous NIKE Marks to identify and distinguish NIKE

footwear.

49. Defendants use of the NIKE Marks and colorable imitations thereof hacaused, and, unless enjoined, will continue to cause, substantial and irreparable injury

to NIKE for which NIKE has no adequate remedy at law, including at least substantia

and irreparable injury to the goodwill and reputation for quality associated with theNIKE Marks.






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reasonable attorney fees under 15 U.S.C. 1125(c), 1116, and 1117.Count IV: Common Law Trademark Infringement and Unfair Competition


53. Defendants offers to sell, sales, distribution, and/or advertisement oOffending Products, in direct competition with NIKE, constitute common law

trademark infringement and unfair competition.

54. The NIKE Marks are entitled to protection under both federal and commonlaw. The NIKE Marks have distinctive appearances using unique and non-functiona

designs. NIKE has extensively and continuously promoted and used the NIKE Mark

for decades in the United States and worldwide. Through that extensive and continuou

use, the NIKE Marks have become famous and well-known indicators of the origin and

quality of NIKE footwear. The NIKE Marks have also acquired substantial secondary

meaning in the marketplace. Moreover, the NIKE Marks became famous and acquired

this secondary meaning long before Defendants commenced their use of the NIKE

Marks and colorable imitations thereof in connection with the Offending Products.

55. Defendants use of the NIKE Marks and colorable imitations thereof islikely to cause consumer confusion as to the origin or sponsorship of the Offending

Products by creating the false and misleading impression that the Offending Products

are manufactured by, authorized by, or otherwise associated with NIKE.56. Defendants use of the NIKE Marks and colorable imitations thereof ha

caused and, unless enjoined, will continue to cause substantial and irreparable injury to



Marks.



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Marks, as demonstrated in Illustration 4 above, and by the Defendants long-standingand continuing disregard for NIKEs intellectual property rights.

58. NIKE is entitled to injunctive relief, and NIKE is also entitled to recoveDefendants profits, actual damages, costs, and reasonable attorney fees.

Count V: Dilution under California State Law

California Business and Professions Code 14247


60. Defendants offers to sell, sales, distribution, and/or advertisement oOffending Products are diluting and are likely to continue to dilute the distinctive

nature of NIKEs trademarks and trade dress. These acts are injuring NIKEs busines

reputation and goodwill in violation of Section 14247 of California Business and

Professions Code.

61. The NIKE Marks are entitled to protection under federal law, commonlaw, and California state law. The NIKE Marks have distinctive appearances using

unique and non-functional designs. NIKE has extensively and continuously promoted

and used the NIKE Marks for decades in the United States and worldwide. Through

that extensive and continuous use, the NIKE Marks have become famous and well

known indicators of the origin and quality of NIKE footwear. The NIKE Marks hav

also acquired substantial secondary meaning in the marketplace. Moreover, the NIKEMarks became famous and acquired this secondary meaning long before Defendant

commenced their use of the NIKE Marks and colorable imitations thereof in connection

with the Offending Products.

62. Defendants use of the NIKE Marks and colorable imitations thereof islikely to cause, and has caused, dilution of the famous NIKE Marks at least by eroding



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footwear.

63.

Defendants use of the NIKE Marks and colorable imitations thereof hacaused, and, unless enjoined, will continue to cause, substantial and irreparable injury


and irreparable injury to the goodwill and reputation for quality associated with the

NIKE Marks.



Marks, as demonstrated in Illustration 4 above.

65. NIKE is entitled to injunctive relief, and NIKE is also entitled to recoveDefendants profits, actual damages, and enhanced profits and damages.

Count VI: Unfair Competition under California State Law

California Business and Professions Code 17200


67. Defendants offers to sell, sales, distribution, and/or advertisement oOffending Products constitutes unfair competition within the meaning and in violation

of the California Business and Professions Code 17200, et. seq.

68. The NIKE Marks are entitled to protection under federal law, commonlaw, and California state law. The NIKE Marks include U.S. Trademark Registration

Nos. 3,451,904 and 3,451,905. The NIKE Marks have distinctive appearances using

unique and non-functional designs. NIKE has extensively and continuously promoted

and used the NIKE Marks for decades in the United States and worldwide. Through

that extensive and continuous use, the NIKE Marks have become famous and well

known indicators of the origin and quality of NIKE footwear. The NIKE Marks hav



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also acquired substantial secondary meaning in the marketplace. Moreover, the NIKE

Marks became famous and acquired this secondary meaning long before Defendant

commenced their use of the NIKE Marks and colorable imitations thereof in connection

with the Offending Products.69. Defendants use of the NIKE Marks and colorable imitations thereof is

likely to cause consumer confusion as to the origin or sponsorship of the Offending

Products by creating the false and misleading impression that the Offending Products

are manufactured by, authorized by, or otherwise associated with NIKE, and is also

likely to cause, and has caused, dilution of the famous NIKE Marks at least by eroding



footwear.

70. Defendants use of the NIKE Marks and colorable imitations thereof hacaused, and, unless enjoined, will continue to cause, substantial and irreparable injury


and irreparable injury to the goodwill and reputation for quality associated with the

NIKE Marks.



Marks, as demonstrated in Illustration 4 above.

72. NIKE is entitled to injunctive relief pursuant to California Business andProfessions Code 17203, and NIKE is also entitled to recover Defendants profitsrestitution, and reasonable attorney fees.

Count VII: Patent Infringement


/ / /



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74. On information and belief, Defendants have used, sold, or offered to selland will continue to use, sell, or offer to sell, footwear that infringes the claim of the

Asserted Patent, without license from NIKE, in the State of California, including this

judicial district, and elsewhere throughout the United States.75. By using, selling, and/or offering for sale their footwear, Defendants have

infringed, and will continue to infringe, the Asserted Patent under 35 U.S.C. 271

literally and/or under the doctrine of equivalents.

76. On information and belief, Defendants infringement of the AssertedPatent under 35 U.S.C. 271 has been and continues to be willful and deliberate.

77. As a consequence of Defendants infringing acts, NIKE has been, is beingand will continue to be injured and has suffered, is suffering, and will continue to suffer

injury and damages for which it is entitled to relief under 35 U.S.C. 281, 284, 285

and 289.

78. As a consequence of Defendants infringing acts, Defendants have alsocaused, are causing, and will continue to cause irreparable harm to NIKE, for which

there is no adequate remedy at law, and for which NIKE is entitled to injunctive relief

under 35 U.S.C. 283.

Relief Sought

WHEREFORE, Plaintiffs respectfully pray for:

1. Judgment that Defendants have (i) willfully infringed the Asserted Paten

in violation of 35 U.S.C. 271 (a) and (b), (ii) willfully infringed the NIKE Marks in

violation of 1114 of Title 15 in the United States Code; (iii) willfully used false

designations of origin/unfair competition in violation of 1125(a) of Title 15 in theUnited States Code; (iv) willfully diluted the NIKE Marks in violation of 1125(c) of

Title 15 in the United States Code; (v) willfully violated NIKEs common law rights in

the NIKE Marks; (vi) willfully infringed the NIKE Marks and engaged in unfai

competition in violation of the common law of California; (vii) willfully diluted the

NIKE Marks in violation of 14247 of the California Business and Professions Code



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and (viii) willfully engaged in unfair competition in violation of 17200, et. seq. o

the California Business and Professions Code;

2. A preliminary and permanent injunction against further infringement

direct and indirect, of the Asserted Patent by Defendants, and each of their agentsemployees, servants, attorneys, successors and assigns, and all others in privity o

acting in concert with any of them;

3. A preliminary and permanent injunction against further infringement, false

designation of origin, unfair competition, and dilution of the NIKE Marks by

Defendants, and each of their agents, employees, servants, attorneys, successors and

assigns, and all others in privity or acting in concert with any of them, including at leas

from selling, offering to sell, distributing, or advertising the Offending Products, or any

other products that use a copy, reproduction, or colorable imitation of the NIKE Marks;

4. An order directing the destruction of all Offending Products, or any othe

products that use a copy, reproduction, or colorable imitation of the NIKE Marks in

Defendants possession or control, including the destruction of all advertising materials

related to the Offending Products and any additional Offending Products in Defendants

possession or control, including on the Internet;

5. An award of damages adequate to compensate Plaintiffs for the paten

infringements that have occurred pursuant to 35 U.S.C. 284, which shall be trebled as

a result of Defendants willful patent infringement, or an award of Defendants profits

from their infringements pursuant to 35 U.S.C. 289, whichever is greater, together

with prejudgment interest and costs;

6. An assessment of costs, including reasonable attorney fees and expensespursuant to 35 U.S.C. 285, with prejudgment interest;

7. An award of Defendants profits, actual damages, enhanced profits and

damages, costs, and reasonable attorney fees under 15 U.S.C. 1114, 1116, and 1117

for Defendants trademark infringements and dilution; and

/ / /



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EXHIBIT A

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SportsWORLD U.S. N.Y. / REGION BUSINESS TECHNOLOGY SCIENCE HEALTH SPORTS OPINION ARTS

AUTOS

BASEBALL PRO FOOTBALL COLLEGE FOOTBALL PRO BASKETBALL COLLEGE BASKETBALL HOCKEY S

The Nike Air Force 1 Sneaker Turns 25 Years Old

By FRED BIERMANPublished: December 23, 2007

In 1982, Nike released the Air Force 1, a basketball shoe that featured

a revolutionary technological innovation: a pocket of air in the heel for

cushioning and support. The shoe, although expensive at $89.95, was

an immediate hit among players, from the N.B.A. to the playground,

with professionals like Moses Malone and Michael Cooper endorsing

them and wearing them during games.

Twenty-five years later, only Pistonsforward Rasheed Wallacestill wears the shoe in the N.B.A.

But the Air Force 1, now priced at $80 for the basic white-

on-white, is a far better seller than when it was introduced.

Largely because of its popularity off the court, it has

become the best-selling sneaker ever with more than 1,800

color combinations, many in limited editions that can cost

thousands of dollars.

Its the No. 1 seller in the history of athletic footwear,said Matt Powell, an analyst at SportsOneSource, a

research and data firm in Charlotte, N.C., that follows the sporting-goods industry.

Nike declined to release sales figures, but Powell estimated that about 12 million pairs of

the Air Force 1 were sold at its peak in 2005, and 10 million to 11 million were sold last

year.

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Nike released the Air Force 1 in 1982.

The sneaker comes in more than

1,800 color combinations and can costthousands of dollars.

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INSIDE

The shoe was originally popular in the East, and Nike is

giving loyalists in Baltimore, Philadelphia and New York

the chance to choose 1 of 25 of the most popular models to

be re-released in those cities in the summer. Baltimore

voted last month, and the Philadelphia balloting ends

Wednesday. Voting in New York will take place Jan. 2-31.

(Polling locations and the winning models are at

nike.com/af1.)

That a 25-year-old sneaker was the best-selling athletic

shoe last year reflects a change in an industry whose

product is becoming valued more for its fashion relevance

than for its performance.

Few people buy Air Force 1s to wear on a basketball court,

and many collectors keep several pairs in pristine

condition to protect their value.

Yet people are still unable to describe what has made the

shoe so popular.

People want to analyze it death, but its really just that it

looks great on your foot, said Bobbito Garcia, a sneaker

and hip-hop expert who wrote the book Whered You Get

Those? New York Citys Sneaker Culture: 1960-1987.

Rare Air Force 1s like the Entourage Edition (in honor of

the HBOshow) and a crocodile-skin 25th anniversary

edition cost more than $2,000 at Flight Club New York, a consignment sneaker store in

Lower Manhattan.

The shoe is just an excellent shoe, said Esteban Padilla, the director of consignment atFlight Club, who was wearing a pair of burnt orange canvas Air Force 1s. Its classic.

One of the keys to the Air Force 1s popularity is that it comes in so many color

combinations.

It takes color very well, KeJuan Wilkens, a Nike spokesman, said. Thats the unique

thing about the shoe, different colors to some people make it feel like a completely

Rusty Kennedy/Associated Press

Moses Malone was an early adopter.

Jeffrey Neira/UPN

The rapper Nelly recorded an ode titled

Air Force Ones.

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different shoe.

et the white-on-white is the most popular model, although many people also own other

colors to complement an outfit or to achieve a different look. Nike often produces limited

runs of various colors, and their scarcity makes them more desirable and moreexpensive. For many collectors, the ultimate goal is to be the only one wearing a particular

sneaker.

Garcia was hand-painting his Air Force 1s in the mid-1980s, well before Nike started

producing different colors.

I didnt want to wear the same colors that everyone else has, he said.

Until the mid-1990s, the Air Force 1 was a hit in some Eastern cities. But their popularity

among influential rappers of that era helped them to sell across the country and across the

globe.

A lot of that had to do with the huge increase in the shoes exposure not entirely due to

sports, but now due to the culture, Garcia said. A lot of the artists from the Eastern

Seaboard who were really killing them particularly Jay-Zwith all the influence he had

globally and him wearing Air Force 1 on stage and videos and concert appearances really,

really pushed the shoe. Had that not happened, the shoe would have still been selling in

New York, Philly and Baltimore; it still would have been that hot shoe. But once all the

recording artists started talking about them, then it just went crazy.

The shoes were popular across the country in 2002, when Nelly, a rapper from St. Louis,

recorded Air Force Ones with a chorus that includes the lines, I said give me two pair/I

need two pair.

As more colors became available starting in the mid-1990s, Nike began releasing limited-

edition models and collaborations with artists that became collectors items. The company

managed sales by regularly releasing models in fewer numbers than the market

demanded. Nike also gave select vendors more exclusive products.

That phenomenon is going on across the whole industry where the kid really wants to

have a unique product, he wants to have a one of one if he can, Powell said. I think Nike

is feeding that interest on the part of the consumer by keeping supply tight.

The sneakers history and original purpose are lost on todays youth.



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There are new generations coming into it that have no idea that it was a basketball shoe

when it came out, Garcia said. No idea. So in another 10 or 20 years, they wont even

know that Jay-Z wore them. They wont have any idea. Theyll just keep wearing them

cause its a cool shoe.

Next Artic le in Sport s (17 of 28)

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EXHIBIT B



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EXHIBIT C



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EXHIBIT D



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1 2 ) United States Design Patent 1 0 ) P a t e n t N 0 . 2USO0D643202S

US D 6 4 3 , 2 0 2 SJ a r v i s 4 5 ) Date o f P a t e n t : * 1 , Aug. 1 6 , 2011

54) SHOE UPPER D516,795 S * 3/2006 Tresser . . . . . . . . . . . . . . . . . . . . . . . . D2/972D528,765 S 9 / 2 0 0 6 P o I t Z l i n e- D531,397 S * 11/2006 Smith . . . . . . . . . . . . . . . . . . . . . . . . . . . D2/9727 5 ) lnvemor- Kelly B- J a l V l S , Oakley, UT Us) D5316 S . . 3 / 2 0 0 7 H l a v a c s 1 3 2 / 9 7 2

7 3 ) A s s i g n e e : N I K E , I n c . , B e a v e r t o n , OR U S ) 2 a k e rD578,294 S 1 0 / 2 0 0 8 Mervar t a 1 .

**) Te r m: 1 4 Years D593,306 S * 6/2009 St-Louis e t a l . . . . . . . . . . . . . . D2/969D636,585 S * 4/ 201 1 Williams, J r . . . . . . . . . . . . . . . . . . . D2/972

2 1 ) A p p l _ No; 2 9 / 3 9 2 959 D 6 3 6 , 5 8 6 S 4 / 2 0 1 1 W i l l i a m s , J r . D636,587 S 4 / 2 0 1 1 W i l l i a m s , J r .

2 2 ) F i l e d : May 7 , 2011 D 6 3 7 , 3 7 9 S 5 / 2 0 1 1 V o a r e e t a 1 .51) LOC 9 ) Cl. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 02-99 OTHER UBLICATIONS5 2 ) US. l . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D2/972 Nike Footwear C a t a l o g , Mens andWomens o o t w e a r : L a t e S p r i n g5 8 ) F i e l d o f Classi?cation Search . . . D2/896, 2 0 0 2 , p p . 5 0 a n d 8 7 , p u b l i s h e d S e p . 2 0 0 1 , N i k e , I n c . , USA.

5 6 )

D 2 / 9 0 2 , 9 0 6 9 0 8 , 9 4 3 , 9 4 4 , 9 6 9 , 9 7 2 * 9 7 4 ;3 6 / 4 5 i 4 9 , 5 0 . 1 , 7 7 M , 7 7 R , 8 3 , 8 8 , 1 1 3 ,3 6 / 1 1 4 , l 2 6 i l 3 lS e e a p p l i c a t i o n ? l e f o r c o m p l e t e s e a r c h h i s t o r y .

References C itedU . S . PATENTDOCUMENTS

D248,192 S 6 / 1 9 7 8 S t e v e n s o nD339,449 S 9 / 1 9 9 3 H a t ? e l dD341,703 S 1 1 / 1 9 9 3 H a t ? e l d e t a l .D342,600 S 1 2 / 1 9 9 3 H a t ? e l d e t a l .D342,604 S 1 2 / 1 9 9 3 A v a rD342,821 S 1 / 1 9 9 4 A v a rD347,724 S * 6/ 1994 T e ague . . . . . . . . . . . . . . . . . . . . . . . . . .. D2/969D347,725 S 6 / 1 9 9 4 B r own t a l .D391,070 S * 2/1998 Ford . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. D2/972D391,752 S * 3/1998 von Conta . . . . . . . . . . . . . . . . . . . .. D2/969D397,855 S 9 / 1 9 9 8 C l a r k eD398,756 S * 9/ 1998 Tong . . . . . . . . . . . . . . . . . . . . . . . . . . . .. D2/972D 4 0 0 , 0 0 3 S 1 0 / 1 9 9 8 F o g gD402,102 S 1 2 / 1 9 9 8 RaskD408,123 S * 4/1999 James . . . . . . . . . . . . . . . . . . . . . . . . . . .. D2/969D415,882 S 1 1 / 1 9 9 9 McDowellD 4 3 2 , 7 8 1 S 1 0 / 2 0 0 0 H a r d yD480,551 S 1 0 / 2 0 0 3 M a t i s e t a 1 .D 4 8 7 , 3 3 7 S 3 / 2 0 0 4 R o g e r sD 4 9 6 , 1 5 2 S 9 / 2 0 0 4 DoxeyD 5 0 0 , 1 9 7 S 1 2 / 2 0 0 4 YoungD505,251 S 5 / 2 0 0 5 M a t i s e t a 1 .D 5 1 1 , 8 8 5 S 1 1 / 2 0 0 5 Young

N i k e F o o t w e a r C a t a l o g , Mens a n d Womens F o o t w e a r : H o l i d a y2 0 0 2 , p p . 1 9 a n d 2 5 , p u b l i s h e d M a r . 2 0 0 2 , N i k e , I n c . , USA.Nike F o o t w e a r C a t a l o g , M e n s , Womens i d s F o o t w e a r : F a l l2 0 0 4 , p p . 7 a n d 6 6 , p u b l i s h e d N o v . 2 0 0 3, N i k e , I n c . , USA.

C o n t i n u e d )Primar y Examiner ominic Sim one7 4 ) A t t o r n e y , A g e n t , o r Firm anner i t c o f f , L t d .5 7 ) CLAIMThe ornamental d e s i g n f o r a s h o e u p p e r , a s shown andd e s c r i b e d .

DESCRIPTIONF I G . 1 i s a f r o n t p e r s p e c t i v e view o f a s h o e upper showingmynew d e s i g n ;F I G . 2 i s a s i d e view t h e r e o f ; a n d ,FIG. 3 i s a r e a r p e r s p e c t i v e view t h e r e o fThe b r o k e n l i n e s i m m e d i a t e l y a d j a c e n t t o t h e s h a d e d a r e ar e p r e s e n t u n c l a i m e d b o u n d a r i e s o f t h e d e s i g n . The f o u ru n s h a d e d e y e l e t r e g i o n s d e m a r c a t e d by r o k e n i n e s f o r m n op a r t o f t h e c l a i m e d d e s i g n . The b r o k e n l i n e s s h o w i n g t h er e m a i n d e r o f t h e s h o e a r e f o r e n v i r o n m e n t a l p u r p o s e s o n l yand form no p a r t o f t h e c l a i m e d d e s i g n .

1 C l a i m , 3 Drawing S h e e t s



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US D 6 4 3 , 2 0 2 SP a g e 2

OTHER PUBLICATIONSN i k e F o o t w e a r C a t a l o g , M e n s , W o m e n s , B o y s a n d G i r l s F o o tw e a r : S p r i n g 2 0 0 5 , p . 5 2 , p u b l i s h e d J u n . 2 0 0 4 , N i k e , I n c . , USA.N i k e F o o t w e a r C a t a l o g : L a t e S p r i n g 2 0 0 5 , p . 1 1 , p u b l i s h e d A u g .2 0 0 4 , N i k e , I n c . , USA.N i k e F o o t w e a r C a t a l o g : H o l i d a y 2 0 0 5 , p . 2 9 , p u b l i s h e d M a r . 2 0 0 5 ,N i k e , I n c . , USA.N i k e F o o t w e a r C a t a l o g : F a l l 2 0 0 6 , p . 1 4 8 , p u b l i s h e d N o v . 2 0 0 5 ,N i k e , I n c . , USA.

Nike F o o t w e a r C a t a l o g , P e r f o r m a n c e F o o t w e a r : F a l l 2 0 1 0 , p p . 3 3a n d 5 7 , p u b l i s h e d N o v . 2 0 0 9 , N i k e , I n c . , USA.N i k e F o o t w e a r C a t a l o g , Young A t h l e t e s F o o t w e a r : F a l l 2 0 1 1 , p . 7 ,p u b l i s h e d N o v . 2 0 1 0 , N i k e , I n c . , USA.Nike o o t w e a r C a t a l o g , Men S p o r t s w e a r F o o t w e a r : S u m me r 0 1 l ,p . 1 5 , p u b l i s h e d A u g . 2 0 1 0 , N i k e , I n c . , USA.* c i t e d b y examiner



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