January 18, 2013
On January 9, 2013, the Supreme Court announced its decision in Already, LLC v. Nike, Inc. The case concerns a suit in which Nike alleges that certain of Already’s athletic shoes infringe Nike’s “Air Force 1” trademark, and Already contends in response that the trademark is invalid. During the litigation, Nike issued a covenant stating that it would not assert any trademark or unfair competition claims against Already based on its existing footwear designs or future “colorable imitations,” and then sought dismissal of all claims with prejudice. Already resisted dismissal, and the question is whether Nike’s unilateral covenant renders the case “moot”.
In an opinion delivered by Chief Justice Roberts, the Court held unanimously that application of the voluntary cessation doctrine establishes that the case is moot. Justice Kennedy filed a concurring opinion, which was joined by Justices Thomas, Alito and Sotomayor.
To discuss the case, we have Christopher Newman, who is an Assistant Professor of Law at George Mason University School of Law.