EU fines Nike $14m; SCOTUS rejects ‘Jumpman’ case
The European Commission has fined Nike € 12.5 million ($14.1 million) after an antitrust investigation found that it banned traders from selling licensed merchandise to countries within the European Economic Area (EEA).
In a statement yesterday, March 25, the commission said the sportswear brand breached European Union competition rules by imposing a number of measures to restrict out-of-territory- sales by licensees. This included explicitly prohibiting these sales as well as imposing double royalties for out-of-territory-sales.
The commission said Nike also enforced indirect measures to implement the restrictions. This was done by threatening licensees with termination of their contract if they sold out-of-territory and refusing to supply “official product” holograms if it suspected that the sales could be going towards other territories in the EEA.
In addition to imposing these obligations on licensees, the commission said Nike also intervened to ensure that retailers stopped purchasing products from licensees in other EEA territories.
The commission concluded that Nike’s practices were in force for approximately 13 years, from July 2004 to October 2017.
EU commissioner Margrethe Vestager said that by preventing many of its licensees from selling its branded products in a different country, Nike caused there to be less choice and higher prices for consumers.
“Football fans often cherish branded products from their favourite teams, such as jerseys or scarves. This is illegal under EU antitrust rules,” Vestager said.
“Today's decision makes sure that retailers and consumers can take full advantage of one of the main benefits of the Single Market: the ability to shop around Europe for a larger variety of products and for the best deals,” she added.
The news came on the same day that the US Supreme Court said it would not hear a lawsuit that claimed Nike copied an image of Michael Jordan to create its ‘Jumpman’ logo.
On February 20, photographer Jacobus Rentmeester asked the court to grant his petition for a writ of certiorari.
The petition came after the US Court of Appeals for the Ninth Circuit held that Rentmeester did not show Nike had copied enough of the protected expression from his photo to establish unlawful appropriation.
In his petition to the court, Rentmeester argued that under copyright law, “when a photographer makes creative decisions, and those decisions are expressed in a photograph, the law protects that original expression from piracy”.
He said the Ninth Circuit erred in its judgment because it departed from earlier case law that held that a photograph possessed originality where the photographer had, among other things, “arranged the subject so as to present graceful outlines” and “suggested and evoked the desired expression”.
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