By: Zebedayo Masongo
In 2017, Virgil Abloh and Nike collaborated on one of the most iconic shoe releases of the last decade.[1] “The Ten” took ten Nike silhouettes and reconstructed them for an exclusive collection that till this day has sneaker collectors scrambling to acquire. Some of the sneakers in this collection have sold for as much as $2000 on the resale market.[2] As interesting as this is, one of the most unique aspects of this collection was the industrial red zip tie that was a design aspect of all of the sneakers.
The zip tie was used as early as 2016.[3] This collection was the collection that put it on the map for sneaker culture and for culture in general. The industrial red zip tie became synonymous with Virgil Abloh and his Off-White brand. With all of the newfound fame, the logical next step would be to protect the iconic design aspect. Trademark would be the proper route, and that is just what was done. Unfortunately, the United States Patent and Trademark Office rejected the trademark multiple times.[4] They argued that the red zip tie was functional and not distinctive.[5]
With the global sneaker resale business set to generate up to $30 billion in 2030, it’s not surprise that Off-White is attempting to protect such valuable property.[6] The damage that could be done if a design like this is not protected could be catastrophic to the value of a brand and could de-incentivize creatives to create certain things if they know that implicitly there are no protections set up for them.
In order to counter the rejections, the lawyers for Off-White offered a few counterarguments. One of the first counterarguments that was presented was that the zip tie was not absolutely necessary or indispensable to the design of the shoe.[7] They also highlighted that no other company was using the zip tie in the same way that they were, so granting the trademark for the zip tie would have no anticompetitive effects.[8]
Thankfully, after years of back and forth, Off-White finally secured the trademark on March 29, 2022.[9] This is significant because it expands the limits on what kinds of design aspects can be trademarked and also changes how sneaker law is approached. In a world where sneaker culture is growing at exponentially fast rate, it is inevitable that other companies will attempt to protect the intellectual property that is embedded in their sneaker designs. Counterfeiters, resellers, retail stores, designers, and brands all have a vested interested in a development like this. It would not be surprising that over the next few months we saw more companies attempting to file trademarks for certain aspects of their sneaker designs. It is an exciting time both for the creator and the consumer.
[1] Virgil Abloh and Nike Announce New Design Project “The Ten,” Nike News (Aug. 21, 2017), https://news.nike.com/news/virgil-abloh-nike-the-10.
[2] Fabian Gorsler, A Complete Guide To Off-White X Nike Resell Prices, Highsnobiety (2019), https://www.highsnobiety.com/p/off-white-nike-resell-price-analysis/.
[3] Ian Servantes, Off-White Secures Zip Tie Trademark After Four-Year Battle, Input Mag (Mar. 30, 2022), https://www.inputmag.com/style/off-white-zip-tie-trademark-registration.
[4] Id.
[5] Id.
[6] Curtis Bunn, Sneakers Are So Hot, Resellers Are Making A Living Off Of Coveted Models, NBC News (Oct. 23, 2021), https://www.nbcnews.com/news/nbcblk/sneakers-are-hot-resellers-are-making-living-coveted-models-rcna3619.
[7] Aaron Chow, Off-White Secures Trademark For Its Red Zip Tie, Hypebeast (Mar. 31, 2022), https://hypebeast.com/2022/3/off-white-wins-trademark-registration-patent-red-zip-tie-news.
[8] Id.
[9] Id.