Brian Bowman – On the Cutting Edge

Rock legend Eddie Van Halen, best known as the lead guitarist of Van Halen, is reportedly taking legal action against Nike over the alleged use of his signature guitar color scheme on Nike’s new Nike Dunk runners.  Van Halen had the red, white and black splattered design most commonly associated with his “frankenstrat” guitar copyrighted in 2001.  Van Halen is claiming that the Nike shoes are damaging his image and “causing irreparable harm and damage” to his design.  Nike has refuted the allegations and stated that “the Dunk shoe design is not substantially similar to any of the Van Halen designs, and Nike has not referenced the Van Halen name or image as part of any marketing campaign or promotional material associated with the shoe.” Interestingly, Van Halen recently released his own shoe line called or EVH shoes, which feature the recognizable pattern.

This case is noteworthy because it demonstrates the importance of intellectual property rights and how some protect such assets.  Having a copyright gives Van Halen the right to control how his design can or cannot be used.  Intellectual property rights allow owners to protect their assets against infringement and defend their rights in court. A successful claim may result in monetary damages, an injunction from the use of the infringing material or destruction of the infringing material.  Van Halen is taking advantage of the court process by claiming damages and the destruction of all products associated with the Nike Dunk runners. On the other hand, lawsuits can be expensive and that in order to infringe the materials have to be substantially similar.  It’s questionable whether the Nike Dunks bare a substantial similarity to Van Halen’s guitar design.  Remember the high profile decision between The Wyrd Sisters, a Winnipeg folk group, and Warner Bros. Entertainment Inc. that saw the band lose a considerable amount of money (including $140,000 in costs) when the judge ruled that the band’s name would not be confused with a band in one of the Harry Potter movies. 

Finally, Van Halen may be “running with the devil” and inviting himself up to his own copyright infringement lawsuit.  The EVH shoe line has been argued by some as bearing a striking resemblance to Converse All-Stars, a company that just happens to be owned by – you guessed it – Nike.