March 28, 2020

Endless Litigation

Bruce Brown Films, LLC, producer of the 1966 classic surfer film Endless Summer, has sued Nike and a number of other entities for Federal Trademark Infringement, Federal Unfair Competition, Federal Trademark Dilution, Common Law Trademark Infringement and Common Law Unfair Competition for using the term Endless Summer in a marketing campaign.

The Nike display certainly uses the phrase “endless summer,” but not as a brand for its shoes. It is difficult to believe that anyone seeing the display believes that the shoes are somehow connected to the 1966 movie.

Nike did not do itself any favors, however, by selecting artwork “inspired” buy the movie poster:

Section of Nike’s marketing materials (left) compared to a section of the Endless Summer movie poster (right).

While someone might confuse the source of Nike’s artwork, would someone really confuse the source of Nike’s shoes?

It should also be known that Bruce Brown Films, LLC holds a trademark registration on ENDLESS SUMMER for athletic shoes:

But Nike’s use of “endless summer” is to evoke a common feeling, not identify the source of Nike shoes. it will be interesting to see how the case develops.