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Eddie Van Halen Tells Nike: Just Do it? You Already did it, copyright infringement!
© Cheryl Hodgson 2009 | Posted on June 28, 2009
Not to be outdone by Ozzy’s media frenzy over BLACK SABBATH, Eddie Van Halen’s guitar stripes are creating a riff in Nike Town. Nike, the company that says JUST DO IT, just got told by Eddie Van Halen in a lawsuit, YOU DID IT! “You stole my copyright.” Nike launched its new Dunk Lows which contain a red white and black striped color scheme similar to Eddie Van Halen’s Frankenstein guitar design.
Eddie’s designs for the guitars were copyrighted in Washington in 2001. Copies of his registrations are properly attached with photos to the Amended Complaint filed June 25, 2009 in the U.S. Central District Court in Los Angeles. His claim is solely for infringement of the artistic design as shown in this copyright.
Early reports contained in taken largely from an article in were a bit confusing, since claims of trademark and copyright infringement were bantered about interchangeably. Typically, many people don’t quite understand the difference between a trademark and copyright, confusing the two. (Okay, I’m available to the media to clarify these differences before articles appear!)
Did NIKE JUST DO IT?
While Eddie’s guitar design could conceivably qualify as a trademark, there do not appear to be any existing trademark registrations for the design as a trademark, nor allegations in his complaint that the design on the guitar functions as distinctive trade dress. The latter can be protected, but requires a higher burden of proof, including distinctiveness and even consumer association. Then there is the issue of the difference between shoes and guitars, although Eddie has launched his own shoe line with the stripes.
Way to go Eddie, for getting good legal advice and listening. He registered his designs as works of art (which they are) and if successful in his lawsuit, he can be awarded statutory damages as well as attorney’s fees. These remedies not available if you fail to register those artistic works prior to infringement. It’s a mere $35 fee and easy at . So JUST DO IT!
Technorati Tags: attorney fees, Copyright, copyright registration, Intellectual Property, Music Law, trademark registration
5 Comments »
June 28th, 2009 at 10:05 pm
Nice article. It made me smile when you included an open offer to provide clarity to the media on issues of trademark vs. copyright. Let us know if and when they call!
July 1st, 2009 at 8:43 am
Very interesting article. Although I was surprised to learn that without a copyright registratin Van Halen would have not been able to sue, if copyrights are supposed to be protected worldwide without need of registration pursuant to the Bern Convention.
July 6th, 2009 at 10:27 am
Laura:
The US is the only country requiring registration in order to qualify for attorney’s fees and statutory damages. Without a registration, the plaintiff must prove actual damages and foot the bill for the litigation, creating little incentive to settle valid claims.
July 6th, 2009 at 12:43 pm
I wonder if they really did copy him, or whether this will end up like the George Harrison/”He’s So Fine” case, where the court found infringement, albeit unintentional.
Of course, a court may say that a decoration consisting of big fat X’s drawn in bright, primary colors lacks sufficient uniqueness to be protected by copyright.
July 6th, 2009 at 1:24 pm
Well of course it could be unintentional. The test of course is substantial similarity which varies with the type of work at issue.