BROOKLYN (CN) --- A federal judge granted Nike’s request for a restraining order halting sales of the controversial blood-filled Lil Nas X Satan sneaker collaboration, but all but one pair of the limited edition of shoes have already been sold.
The customized Nike Air Max 97s, a collaboration between the prank/art collective MSCHF and rapper-singer Lil Nas X, were only available in a run of 666 pairs, which sold out at $1,018 per pair in less than a minute on Monday.
Regardless of that inventory, U.S. District Judge Eric Komitee granted Nike’s request for a temporary restraining order halting production and sales of so-called “Satan Shoes,” in a 5-page opinion Thursday evening, but stopped short of ordering a recall to claw back the 665 pairs that have already been ordered.
“Nike has carried its burden, at this stage, of showing that MSCHF’s actions are likely to confuse, and likely are confusing, consumers about the origin, sponsorship, or approval of MSCHF’s goods,” the Trump-appointed judge wrote, granting the temporary restraining order pending the resolution of Nike's motion for a preliminary injunction.
In a statement issued Thursday afternoon, MSCHF said Nike’s legal actions will indefinitely prohibit Lil Nas X from raffling off the last remaining 666th pair of Satan Shoes to fans on Twitter.
Nike sued MSCHF in the Eastern District of New York on Tuesday to order the group to "permanently stop" the company fulfilling orders for the "unauthorized" shoe.
The athletic apparel giant’s lawsuit notes that social media users have threatened to boycott Nike over the controversial shoes, “based on the mistaken belief that Nike has authorized or approved this product.”
“This is a textbook case of dilution, by both blurring and tarnishment,” Nike wrote in its motion for the temporary restraining order. “MSCHF cannot credibly dispute that Nike’s Swoosh design is famous, or that it achieved fame long before MSCHF launched its Infringing Sneakers.”
MSCHF asserts that the Satan Shoes are expressive works of art, not unlike the collective’s companion work released last year, the “holy water”-filled Air Max 97s, dubbed Jesus Shoes.
“Satan Shoes started a conversation, while also living natively in its space,” the group said in its statement Thursday. “It is art created for people to observe, speculate on, purchase, and own. Heresy only exists in relation to doctrine: who is Nike to censor one but not the other? Satan is as much part of the art historical canon as Jesus, from Renaissance Hellmouths to Milton.”
“Satan exists as the challenger to the ultimate authority,” MSCHF wrote. “We were delighted to work with Lil Nas X on Satan Shoes and continue this dialogue.”
During a one-hour hearing Thursday morning, MSCHF’s counsel asserted that the “Satan Shoes” are an artistic expression criticizing “collab culture,” which they contend is protected free speech under the First Amendment.
“These are not shoes that are worn," MSCHF’s attorney, Megan Bannigan from Debevoise & Plimpton, explained, asserting that there is scant likelihood of post-sale confusion because the shoes’ niche consumers --- “sneakerheads” --- don't often actually walk around in limited releases like the Satan Shoes.
They are often kept in glass cases, at museums or galleries, she insisted.
Nike’s attorney, Michael Harris from Arnold & Porter, rebutted that earlier this week pop star Miley Cyrus posted photographs on Instagram wearing the Satan Shoes in a post that netted 1.6 million likes.
"These types of shoes are often sold in secondary markets," Harris said. "They're currently being sold in secondary markets and they're being marketed as 'Nike Satan Shoes'."
Bannigan called Nike's demand to recall over 600 pairs of sneakers sold directly to individual consumers an “extreme” and "drastic" remedy.
Judge Komitee will allow MSCHF to argue their First Amendment defense based on the purported expression embodied by the collective’s production and sale of the Satan Shoes.
“First Amendment rights of artistic expression are paramount, and Defendant will have a full opportunity to pursue this affirmative defense at the preliminary injunction stage, if it chooses,” he wrote in Thursday’s opinion.
The judge set the next hearing on the preliminary injunction in the case on April 14.
The lawsuit does not name Lil Nas X, whose real name is Montero Lamar Hill. But the 21-year old artist has taken to social media in the wake of its filing, tweeting a storm of jokes and memes about the litigation.
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