A Florida district judge has granted Nike a partial win in a legal battle with a social media influencer, finding that he had infringed the sportswear giant’s trademarks through selling counterfeit goods.

Social media influencer Eben Fox, who posts under the name Cedaz, has amassed more than a million followers online.

Nike filed a lawsuit against the sneaker influencer in December 2023. It said that as a content creator, his sole source of income stems from creating fashion-related content, including content about counterfeits, which Fox also refers to as “reps”, “replicas”, or “fakes”. 

Judge Virginia Hernandez Covington issued her order on 21 April at the middle district of Florida. She found that it was “undisputed” that Fox sold counterfeit Nike goods in connection with the popular mobile phone payment app CashApp, and that Fox posted counterfeit Nike shoes for sale on the social media platform Discord.

The judge also agreed with Nike that there was a presumption of likelihood of confusion among the consumer public over whether the counterfeit items were authentic. Thus the summary judgment was granted regarding those claims.

The court also concluded that Nike is entitled to a permanent injunction against Fox, which will be entered at the end of the case.

Summary denied

It didn’t go all of Nike’s way, however, with the judge denying summary judgment and, potentially, proceeding to trial on infringement and counterfeit claims in connection with Fox’s online promotional activities, which include shipping agent affiliations (including PandaBuy), websites, videos, spreadsheets and promotion of counterfeit sellers.

The court conducted a likelihood of confusion analysis involving seven factors that included the strength of the allegedly infringed mark and the similarity of the infringed and infringing marks.

The judge said that although the first six factors in establishing the likelihood of confusion favoured Nike, the seventh did not: the existence and extent of actual confusion in the consuming public.the existence and extent of actual confusion among the consuming public. 

Nike only showed actual confusion relating to Fox’s YouTube channel, where members of the public believed his fake shoes were authentic Nikes.

Without evidence of actual confusion, a reasonable jury could still find no likelihood of confusion in connection with online activities such as his shipping agent affiliations, websites and videos, the judge noted.

Looking at contributory infringement and counterfeiting, Nike was denied summary judgment that Fox was liable for direct infringement on the part of the shipping agents. Here, “a genuine dispute of material fact exists as to whether PandaBuy and the shipping agents are direct infringers for the purposes of finding Fox contributorily liable”,  said the judge.

But the judge ruled that Nike was entitled to summary judgment on its claims that Fox was contributorily liable for the social media sellers’ activities. 

Describing the court’s reasoning, the judge noted that Fox did not respond to Nike’s argument in this respect, instead focusing solely on the shipping agents.

The judge continued that it was “undisputed” that Fox provided the sellers with dedicated channels and occasional introductions on his Discord server and that he referenced another seller on his website, cedaz.net, that facilitated the sellers’ direct infringements.

Bloomberg reports that DLA Piper US is representing Nike and Tampa-based lawyers Four Rivers Law Firm is representing Eben Fox. 

This case demonstrates Nike’s determination to tackle online counterfeiting. Last month, a US judge sided with Nike in finding that reseller StockX was liable for selling counterfeit Nike shoes.