There is something very rewarding about unrolling one’s finished project after the hours of blood, sweat and tears. To see the pattern come to life. When the brush, needles and scissors are put down with the sum of one’s mental and physical effort, one may think that after all that, they have full control over what to do with it. Largely speaking, that is true. For example, if one knits a pattern of a sweater found online, one is free to keep the finished product for themselves, give it away as a gift, or even sell it for a profit as long as the author of the pattern does not restrict such uses. Likewise, sewing a quilt using another’s pattern, even allows you to enter competitions provided that the pattern and author are credited. However, that may not always be the case.
Things get complicated when one modifies existing designs. Copyright applies to a (novel) pattern the moment it’s been put to paper, and even a name can come under copyright if well-known. Recently, a large legal battle emerged in the United States of America (“USA”) between Nike Inc. and several smaller companies including The Shoe Surgeon. The Shoe Surgeon, a Los Angeles based creator, is well-known for customising Nike shoes and collaborating with brands like Gucci, Louis Vuitton and celebrities. The Shoe Surgeon has run into issues with designer labels and large corporations before, but recently Nike has thrown a massive, public claim against them and other entities for a total sum of $60 million or the profits from their infringing acts against Nike in the alternative.
In response, The Shoe Surgeon made an official statement that skirted the edge of innocence and indignancy. While they do not claim that they are faultless, their statement read that it is regrettable that Nike progressed to legal proceedings before attempting negotiations. This would seem harmless if not for the checkered history the Shoe Surgeon has with Nike, amongst other brands. Interestingly, in the USA, certain functional items such clothes and shoes as patterns are beyond copyright. Therefore the issue presented in their 63-page court document centres around the defendants unauthorised use of the Nike brand and designs with materials and logos of high-street fashion labels such as Louis Vuitton, Goyard and Gucci. In addition, Nike takes issue with the Shoe Surgeon and other defendants unfairly using Nike’s reputation for a lucrative business. The Shoe Surgeon’s classes, wherein the participants are taught to create replicas of Nike’s shoes, costs between USD $3000-$3500 per attendee, further fuelling Nike’s concerns.
In essence, Nike cannot and is not alleging copyright infringement for the customisation of products acknowledged to belong to Nike. The battle is over the replication of the ‘Nike Asserted Marks’; trademark infringement by replicating the Nike tick or facsimiles; unfair competition; counterfeiting; and diluting and exploiting Nike’s reputation. This lawsuit is not uncharacteristic of Nike: they are currently embroiled in another legal proceeding of a similar nature against the athleisure brand Lululemon.
While this ongoing case is in the USA’s legal system, South Africa has a similar legal position due to being a fellow signatory of the Paris Convention regarding copyright and trademark laws. However, the outcome may still be unpredictable such as in the dispute between Polo by Ralph Lauren and Polo SA which touches on similar issues of reputation and trademark. Nevertheless, for creative projects it is usually safe to use another’s patterns for personal use or to credit the original creator when sharing one’s work to the public. To be safe, remember that building a corporate empire on the intellectual property of another can lead to legal issues.
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