The most notable part of Adidas’ new lawsuit against Nike isn’t that the two giants are fighting again in court or that the patents are at the center of the case. It is the type of technology that is being challenged.
Adidas filed a lawsuit against its archrival on June 10 in federal court in East Texas, alleging Nike infringed on nine patents, some dating back nearly 20 years. Among them were methods for tracking a user’s fitness activities or creating a workout plan. Others were related to making online product deliveries secure and bot-proof through a geo-targeted reservation system allowing customers to pick up their items from a nearby store. Some involved aspects of electronically adjustable shoes.
Fashion companies typically sue for design patents, which protect a product’s appearance. (Trademarks like logos or product-identifying words are another popular area of litigation, as Adidas has proven with its series of lawsuits against trademarks using three stripes.)
Legal battles over utility patents covering the operation of products are much rarer in the industry, according to Barry Lewin, an attorney at the law firm Gottlieb, Rackman & Reisman. But that’s changing as brands use technology more to connect and sell to customers.
“That’s to be expected as the fashion world migrates into the tech world,” Lewin said.
Utility patents aren’t completely unheard of in fashion and footwear, of course. Sports brands invest heavily in the design of new technologies such as cushioning and other components that they often want to protect. Nike filed utility patents to protect its Air and Flyknit products and used them to sue Puma in 2018.
But more and more companies are integrating technologies like sensors into accessories to measure health or activity, or using new methods to add benefits to clothing like sun protection, Lewin noted. And as the Adidas lawsuit illustrates, these aren’t the only areas where brands might seek to protect their innovations.
In addition to calling products like Nike’s self-tightening HyperAdapt sneakers wearable, Adidas has accused Nike of treading on its patents with its apps, including Run Club, Training Club and SNKRS, where Nike launches its hottest products. . (It should be noted that Nike has its own patent on an “automatic lacing system.”)
Apps have become important tools for brands to reach customers who increasingly live on their phones, and apps from Adidas have generally not been as popular as those from Nike. Nike’s main retail app is currently Apple’s eighth largest shopping app on iOS in the United States, according to intelligence platform Apptopia. SNKRS ranks at 27 and Adidas’ equivalent, Confirmed, at 34.
In February, SNKRS also had more than 2.5 times the market share based on monthly active users than Confirmed among major sneaker apps.
As brands turn to technology to help them engage customers, fight bots, provide new ways to virtually try on clothes, and generally provide better online experiences, more seem likely to try to patent new methods or systems they propose that can provide them with a competitive advantage.
The entry of fashion into NFT and web3 is not about to change the dynamic. It will put more emphasis on technology. Again, look at Nike: in 2019, it filed a patent for blockchain-related shoes which it dubbed CryptoKicks. At the time, the news prompted just-started RTFKT to consider dropping its path to sneaker NFTs, though it stayed the course and was acquired by Nike last year.
A lingering question about the new trial is why now? Some of these patents are years old, and Nike’s allegedly infringing products aren’t new either. Lewin pointed out that patents last for 20 years, so the oldest ones are approaching their expiration date. Adidas could act while it still can. He also noted that companies usually try to settle such matters amicably first. Perhaps they have come to an impasse.
Adidas did not return a request for comment and Nike said it would not comment on pending litigation.
Whatever the reasoning, this won’t be the last instance of one apparel and footwear company suing another over how their products work, not just how they look.