Nike is suing Wal-Mart Stores alleging the retailer is selling shoes that look similar to the Nike’s own patented technology and design.
In the complaint, filed in a federal district court in Chicago, the sportswear company accused the world's largest retailer of offering "shoes having designs that are covered by the Nike design patents." Nike named two patents related to its popular "Shox" brand, a cushioning system that uses small hollow columns to soften the impact of an athlete's stride. The Wal-Mart shoe used the name Detra.
In May, a federal jury in Portland ordered Payless Shoesource Inc. to shell out $304.6 million for infringing on Adidas America Inc.'s three-stripe trademark and shoe styles. A judge later reduced the award to $65 million.
Similar to the Adidas-Payless case, Nike is taking on a retailer rather than an industry rival. The complaint, filed Monday, includes photos of the Wal-Mart shoe, called the Detra, which bears no Swoosh but does appear to have cushioning columns in the heel similar to the popular Nike Shox.
Nike has refused to sell to Wal-Mart in the past out of concern that it would devalue the Nike brand. It also sued Wal-Mart at least once before over sales of an alleged Nike knock-off.
Nike won that suit, over a shoe that closely resembled a Nike hiking shoe. It appealed the case to the U.S. Supreme Court after a lower court slashed its damages from $6 million to $1.6 million.
Ethan Horwitz, who practices intellectual-property law at New York-based firm King & Spalding, said Nike's choice to pursue a patent claim rather than a trademark claim may bolster the Oregon company's case.
While consumers would be unlikely to confuse the Wal-Mart shoes with Nike's branded footwear -- a trademark issue -- patent claims involve more clear-cut issues of research and development, he said.