The Last Dance on Netflix is a unique take on the story of Michael Jordan’s last season with the Chicago Bulls – the attempt at a second three-peat that would guarantee his place as the greatest basketball player of all time. During the 10-part series we have seen the disputes with the front office, the issues with Scottie Pippin, the introduction of Dennis Rodman, the first retirement, the “I’m back” moment and there has even been a brief mention of the Air Jordan Brand.
What started as a shoe deal for a rookie Michael Jordan turned into one of the best known global sporting brands of all time. Since the phone call when Michael Jordan’s agent came up with “Air Jordan”, the brand has faced numerous challenges on and off the court. Versions of the shoes were banned by the NBA for not featuring enough white, there was a dispute about the origins of the Jumpman Logo and Jordan has even faced troubles in China over using his own name. With the final episodes being released, it is the perfect opportunity to consider the intellectual property involved in Air Jordan, The Last Dance and the Jumpman Logo.
Jordan signing with Nike
Although Nike and Michael Jordan appear to be a match made in sporting heaven, it wasn’t always going to be the case. Jordan has said that he preferred the Adidas trainers at the time he entered the NBA and he had worn Converse during university. Most of the pros at the time, including Magic Johnson and Larry Bird had endorsement deals with Converse. Nike was seen more as a brand for track athletes and it was only at the behest of his parents that Jordan went to a meeting to hear from the emerging company based in Oregon.
Nike offered Jordan a five year contract for $500,000 a year which was three times any other NBA shoe deal at the time (remember that Jordan was a rookie at the time and hadn’t even played an NBA game at this point). The endorsement deal also included his own shoe range as part of the deal and in The Last Dance this is compared to a number of US tennis players who had their own ranges of sports equipment. This was new approach at marketing an athlete in a team sport and many thought it would not be successful. Adidas wouldn’t match the offer and so Jordan signed with Nike. It was Jordan’s agent that coined the phrase “Air Jordan” during the negotiations and one of the most famous athletic trade marks was born.
In its 2019 10K (Annual Report) Nike states that it values its portfolio of trade marks as some of its most valuable assets, including Jordan and the Jumpman Logo. The brand has become increasingly lucrative and in 2019 it made over $3 billion in revenue. It has its own product category which is described as follows:
Our Jordan Brand designs, distributes and licenses athletic and casual footwear, apparel and accessories predominantly focused on basketball using the Jumpman trademark. Sales and operating results for Jordan Brand products are reported within the respective NIKE Brand geographic operating segments.
The importance of the intellectual property is well understood by Nike and the Jordan Brand is no exception. Branding has always been important to Nike. In the book Shoe Dog, Phil Knight refers to the creation of the Nike brand being partly due to protect the intellectual property and business of Blue Ribbon Sports from the potential hostile takeover of Onitsuka Tiger for which it had been the distributor.
Recently a pair of Jordan Ones worn by Michael Jordan during his rookie season were auctioned by Southerby’s for $560,000. Like most of Jordan’s shoes they are not the same size. He wore size 13 on the left and 13.5 on the right.
The iconic Jumpman trade mark
The Jumpman logo must be one of the most recognisable sporting logos. The original Air Jordan logo was slightly different. It was in a more traditional badge featuring Air Jordan wings and had a military emblem feel to it.
The Jumpman logo was not brought in until the Jordan II. This logo was inspired by a photo of Michael Jordan leaping towards the basket to dunk which had been taken by Jacobus Rentmeester for Life Magazine during the 1984 Los Angeles Olympics. In the photo Jordan is wearing New Balance trainers because he had not signed with Nike at the time.
Later in 1984 when the Air Jordan campaign took off, a photo of Jordan leaping towards the basket was used on the swing-tag for the original Air Jordans. It turns out that Nike liked the Life Magazine photo so much they had recreated it (with Jordan wearing Nike trainers this time). Remembering the photo, Jordan has since stated that he was not actually reaching for a basket or dunking during the shoot. Instead the photographer asked him perform a ballet move and just jump into the air – a form of Grand Jeté. It is worth noting that intellectual property can subsist in dance moves as they can benefit from copyright protection, provided they are sufficiently original.
Rentmeester threatened to sue Nike for copyright infringement and Nike paid him $15,000 to use the photo for various marketing purposes for two years. In 1987 Nike changed the logo to what it is today and it is from the second photo that Tinker Hatfield created the Jumpman directly from the outline.
The intentional replication of a photograph has notable copyright implications. In 2015 Rentmeester claimed copyright infringement against Nike on the basis that the differences between the photographs were minor. Nike claimed that the concept of Jordan dunking a basketball was not protectable. there are notable similarities between the two photos, the leaping motion, the fully extended arm with the basketball, the position of the basketball in relation to the body. However, there are also some elements that differ. The position of the right arm in the original is different and his right leg is bent. He is also wearing different clothing in both photos.
Taking these factors into account, the Appeals court sided with Nike and held that the two photographs were not substantially similar on the basis of the differences of the selection and arrangement of elements. This appears to be quite a harsh decision on Rentmeester, given that one photo directly inspired the other and it raises questions of whether other jurisdictions would come to similar decisions, particularly in Europe following the decision in Infopaq.
The issue of copyright infringement in logos has recently been considered by the court in the UK in the case involving Whyte Bikes and Rich Energy. This case involved two similar “stag head” designs one used as branding for bicycles and the other being the branding for energy drinks, which sponsored a Formula 1 racing team.
In the case Whyte Bikes claimed that Rich Energy had copied its stag head design when producing its branding. In its defence Rich Energy submitted that the design process included research into other energy drinks company logos and other stag head logos.
Given that the evidence from Rich Energy stated that they had reviewed “hundreds” of stag heads the burden of proof shifted to Rich Energy to satisfy the court that the similarities in the devices did not result from copying. The judge was not satisfied that Rich Energy had met this threshold and found in favour of Whyte Bikes. The similarities between the devices were sufficiently close, numerous and extensive so as to be more likely to be the result of copying than merely a coincidence. Nike is lucky it did not receive a similar analysis and judgment.
Alleged copyright infringement over the use of a photo has recently come up again for Michael Jordan. Cincoro Spirits Group, a tequila company partly owned by Jordan along with four other NBA owners, has had a lawsuit filed against it with the claim that it used a set of photos without a licence. The lawsuit claims that photos (or copies of photos) taken by Ms Ganouna are available on Cincoro’s website, social media accounts and digital advertising following assurances from the company that they would not be used.
IP in Jordan shoes
The designs of Air Jordans are protected by a variety of intellectual property rights. They even received a special design patent in 1998. The Commerce Department of the US Patent and Trademark Office issued the 400,000th design patent to the Air Jordan design of that year. Design patents in the USA provide exclusive rights to their owners for a term of 14 years from the date of issuance.
The use of the name Jordan as a Trade Mark
Using a name as a trade mark has its advantages, with the ease of association of reputation and this has been common practice in the fashion industry. However, using a name has caused some issues for designers and owners who have wanted to sell the company or use their name in another enterprise.
Although Jordan may be unlikely to ever want to use his name for another brand, some designers have been in the situation where they have sold their label (and with it all of the associated intellectual property rights) only to be prevented from using the own name in relation to future enterprises.
Karen Millen sold her business in 2004 and under the terms of the sale, she was restricted from any future trading under her own name. Years later she would even be unable to trade under the name “Karen” alone. Other fashion brands have restrictive contracts for designers, who may not even have their name on the brand, in order to prevent them from directly competing when they leave the fashion house.
Roger Federer found himself in a similar situation with the “RF” logo, which was a Nike owned registered trade mark until recently. When athletes lend so much of their personality and image to a brand owned by a sports company it really does mean the relationship is for the long term.
TM Dispute in China – Qiaodan Sports
Jordan has also been a brand that has come across an emerging phenomenon when registering trade marks – the transliteration of a well known trade mark into other languages, most notably Chinese. Recently, Jordan prevailed at the China Supreme People’s Court in revoking a trade mark for “Qiao dan” and a device of an individual playing basketball (which turned out to be derived from a photo of Michael Jordan playing) but the journey to get there took over ten years.
In 2007 Qiaodan Sports applied to register the trade mark for the word “Qiao dan” with the device of an individual playing basketball above it – trade mark No. 6020578. “Qiao Dan” translated literally means “tall red” and sounds like “bridge peony” This application was approved for registration on 21 April 2010 in class 25 (clothing; swimwear; and other commodities). The company also registered trade marks in Chinese characters for similar sounding words to”Marcus Jordan” and “Jeffrey Jordan” which are the names of Michael Jordan’s sons. These registrations became evidence supporting the allegation that there was a deliberate attempt to associate the brand with Michael Jordan.
Over the course of the 1990s and 2000s Qiaodan Sports registered approximately 200 marks. The company has clearly understood Chinese trade mark law, which operates on a “first to file” basis. The strategy was effective and in 2009 when Nike filed to register at least five trade marks for JORDAN, it was blocked by Qiaodan Sport’s earlier registration of QIAODAN on the basis that there was a likelihood of confusion. In 2012 Michael Jordan filed to invalidate a significant number of the marks and even released a video on therealjordan.com stating that he was protecting his own name.
Jordan filed a request to cancel the trade mark and lost. He filed an administrative lawsuit and lost. He appealed that decision to Beijing Higher People’s Court and lost. Then he appealed to the Supreme People’s Court and just like a game seven, he won. Qiaodan Sports is now prohibited from using the mark.
Quick side note for any basketball fans. The last time Jordan lost three times in a row (when playing for the Chicago Bulls) was in 6 November 1990 which is not bad since The Last Dance took place during the 1997-98 season.