It was the campaign that seemingly ticked all the boxes and became a massive social media phenomenon – managing to be all at once humorous, cultural and political. But, the Nike 'Nothing beats a Londoner' campaign has led to it being subject to an interim injunction and facing a trade mark trial this summer.
The Claimant is LNDR, a female sportwear and athleisure brand stocked in stores such as Selfridges. It created the name in 2015, describing it as "a jumble of letters created to make a strong and distinctive mark. While it had no meaning, it was our aim to build meaning behind it, with a brand that was inspired by an active London lifestyle, people that fit everything in one day". Its complaint centres on Nike's use of LDNR in its ad campaign and in associated advertising and social media, in conjunction with its 'Swoosh' logo.
The Court has granted LNDR an interim injunction, pending an expedited trial, noting in particular that there were already examples of actual confusion, and that LNDR would suffer damage which could not be compensated in damages if an interim injunction was not granted. The injunction prevents Nike using LDNR as part of its promotional campaign until then. However, following Nike's appeal, the Court of Appeal decided that it should not be required to remove all past references to LDNR from social media – instead of permanently deleting YouTube videos, it could blur the appearance of LDNR, and it could archive existing posts on Instagram. As for Twitter, deleting past tweets could be irreversible and would mean Nike would not have the benefit of continuing conversation on its campaign.
The trial between LNDR and Nike will take place in July 2018. In the meantime, LNDR has given a cross-undertaking in damages in the event that the Court decides the interim injunction should not have been granted. The situation Nike faces is a reminder of the importance of conducting clearance searches before launching a new brand, including of any related phrases and advertising hooks. But it also demonstrates that the Courts recognise the importance of social media for brand engagement and development – whilst Nike cannot use LDNR in future social media posts, pending the outcome of the trial, it has not been forced to airbrush its brand entirely.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
