Nike and Footlocker have been accused of riding on the back of the wave of The Endless Summer, a surfing documentary from the 1960s, after launching a campaign that featured notable similarities to the film.
Released in 1966, The Endless Summer follows two surfers on a trip around the world, in search of the perfect new surf spot. Despite the film's niche nature, it garnered widespread appeal – it was reported that audiences lined up in the middle of a blizzard in Wichita, Kansas for a chance to catch one of the limited screenings – and has come to be known as the most seminal surfing film of all time. The film is said to have inspired a new generation of surfers to take up the sport.
Bruce Brown Films, LLC, the company founded by the documentary's film maker, considers that Nike and Champs (a US subsidiary of Footlocker) were also clearly inspired by the film. In May 2019, Champs launched a campaign called 'Endless Summer' to promote a range of Nike sneakers through its website and in over 500 retail stores throughout the US. The campaign also featured strikingly similar imagery to the movie's film posters, consisting of 'a series of stylized blue waves with a large orange sun', which are protected by trade dress laws in the US.
According to a suit filed by Bruce Brown Films, which is responsible for merchandising and licensing the trade marks and copyrights associated with the film and the 'iconic and world famous' posters, the actions of Nike and Champs infringe its trade marks for 'Endless Summer'. In addition, it alleges that these actions could lead consumers to be confused as to the origin of the sneakers, or deceive customers into believing the campaign is endorsed or sponsored by the makers of the film.
The suit also claims that Bruce Brown Films sent a cease and desist letter to Champs, and yet the campaign continued. It also adds that the continued success of The Endless Summer means that the brand associated with the film still continues to be 'a highly profitable property', with various licensing deals connected with it – making confusion over a false endorsement even more likely.
As we await a decision in the dispute, the case highlights the risk of taking inspiration from other brands or works of art – even where the intention could be to pay homage in good faith. It also reminds us how trade marks and intellectual property rights can still be incredibly valuable to the rights holder, even more than 50 years later.
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