If you tune in to Super Bowl LVII this Sunday, you might just hear Kevin Burkhardt or Greg Olsen quip the age-old adage that “the best defense is a good offense.” Certainly, the NFL’s uniform supplier agrees. Nike is no stranger to filing (and winning) suits against entities producing shoes a bit too close to their trademarks including: Ari Forman’s 2006 “Air Menthol 10’s,” an art project satirizing consumption, Newport cigarettes, and Nike’s Air Force 1; Lil Nas X and MSCHF’s 2021 “Satan Shoes” and “Jesus Shoes,” both altered versions of Nike’s Air Max 97; and Warren Lotas’ 2019 Nike SB Dunks which replaced the iconic swoosh with Jason Voorhees’ hockey mask. These “bootlegs” do not seek to mimic Nike shoes exactly but instead to take those elements and “mold them into something different.”
However, arguably the most successful bootleg Nike sneaker came before any of these. A Bathing Ape, better known as Bape, released the Bapesta in 2000. This “near one-to-one replica of Nike’s iconic Air Force 1” went undisturbed by Nike for two decades while they pursued those smaller infringers. Nevertheless, in January of 2023, Nike filed a complaint in the Southern District of New York primarily predicated on the same trademark infringement basis as the aforementioned suits. After twenty years of living with the Bapesta, you have to wonder what changed the litigation decision for Nike.
Last August, Bape and Marvel collaborated on a Bapesta line featuring illustrations of Iron Man, Captain America, the Hulk, Thor, Rocket Raccoon, and Black Widow. Nike quickly sent a letter to Bape warning that the collaboration “was likely to create an ‘erroneous association’ between Bape’s shoes, Disney, Marvel, and Nike.” Yet Nike still did not go to court.
Nike instead alleges that Bapesta sales were de minimis in the United States until 2021 and that from 2016–2021 the Bapesta was redesigned to distinguish themselves from Nike’s shoe. But in 2021, Bape increased Bapesta production and returned to the original Air Force 1-esque design while also releasing new shoes: the “Sk8 Sta,” the “Court Sta,” and the “Court Sta High” resembling the Nike Dunk, Air Jordan 1 Low, and Air Jordan 1 High respectively. Nike claims that Bape’s “copying is and always has been unacceptable” but because the “infringements have recently grown to become a significant danger to Nike’s rights…[Nike is] forced to bring this lawsuit [now.]”
The Ninth Circuit has accepted the doctrine of laches as a defense to trademark infringement claims. For example, in Pinkette, the senior user of a trademark was precluded from claiming infringement against the junior user when the senior user had a mere four years of constructive knowledge of the alleged infringement. Nike, on the other hand, seems to have had a near twenty years of constructive knowledge. While laches is yet to be applied as a defense to trademark infringement in the Second Circuit or SDNY, Nike’s extended delay in asserting their rights may prove a significant barrier to their claim. Moreover, Bape continues to release their allegedly infringing shoes. Truly, Nike’s best defense here may have been an even more aggressive offense.
 The Story of the Most Forbidden Sneaker Ever Made, NSS Mag. (Mar. 15, 2019), www.nssmag.com/en/fashion/18003/ari-menthol-10-s [https://perma.cc/YV6F-L2YG] [https://web.archive.org/web/20230209204158/https://www.nssmag.com/en/fashion/18003/ari-menthol-10-s].
 Bryan Pietsch, Nike Sues over Unauthorized ‘Satan Shoes’, N.Y. Times (Mar. 28, 2021), https://www.nytimes.com/2021/03/28/style/nike-satan-shoes-lil-Nas-x.html [https://perma.cc/7AFE-WC2K] [https://web.archive.org/web/20230209204611/https://www.nytimes.com/2021/03/28/style/nike-satan-shoes-lil-Nas-x.html].
 Brendan Dunne, Nike v. Warren Lotas: The Bootleg Dunks and Their Place in History, Complex (Nov. 13, 2020), https://www.complex.com/sneakers/nike-warren-lotas-lawsuit-knockoff-dunks-history [https://perma.cc/A338-HX38] [https://web.archive.org/web/20230209205135/https://www.complex.com/sneakers/nike-warren-lotas-lawsuit-knockoff-dunks-history].
 Matt Welty, The Most Important Bootleg Sneakers, from Bape To Warren Lotas, Complex (Nov. 23, 2020), https://www.complex.com/sneakers/most-important-bootleg-sneakers-in-history [https://perma.cc/4FD8-XTKC] [https://web.archive.org/web/20230209205604/https://www.complex.com/sneakers/most-important-bootleg-sneakers-in-history].
 A Bathing Ape Brings Back Bape Sta, Bape, https://us.bape.com/blogs/news/a-bathing-ape-brings-back-bape-sta [https://perma.cc/L5Q4-HY2E] [https://web.archive.org/web/20230209210052/https://us.bape.com/blogs/news/a-bathing-ape-brings-back-bape-sta] (last visited Feb. 9, 2023).
 Marc Richardson, A Star is Born: The Best Bapesta Sneakers, Grailed: Dry Clean Only (June 3, 2019), https://www.grailed.com/drycleanonly/most-important-bapestas [https://perma.cc/J67Y-LHKF] [https://web.archive.org/web/20230209210645/https://www.grailed.com/drycleanonly/most-important-bapestas].
 Complaint at p. 1, Nike, Inc. v. USAPE LLC, No. 1:23-cv-006600 (S.D.N.Y. filed Jan. 25, 2023).
 Bape and Marvel Collaboration Announcement, Bape, https://us.bape.com/blogs/news/bape-x-marvel [https://perma.cc/K8JT-896E] [https://web.archive.org/web/20230209210921/https://us.bape.com/blogs/news/bape-x-marvel] (last visited Feb. 9, 2023).
 Brendan Dunne, Nike Suing Bape Is 20 Years in the Making, Complex (Jan. 27, 2023), https://www.complex.com/sneakers/nike-bape-trademark-lawsuit-explained [https://perma.cc/PG8J-CMZ3] [https://web.archive.org/web/20230209211321/https://www.complex.com/sneakers/nike-bape-trademark-lawsuit-explained].
 Complaint at ¶ 3, Nike, No. 1:23-cv-006600 (S.D.N.Y. filed Jan. 25, 2023).
 Id. at ¶ 4.
 Id. at ¶ 5.
 See, e.g., Pinkette Clothing, Inc. v. Cosm. Warriors Ltd., 894 F.3d 1015 (9th Cir. 2018)
 Id. at 1027.
 See, e.g., @BAPEOFFICIAL, Twitter (Feb. 7, 2023, 8:00 AM), https://twitter.com/BAPEOFFICIAL/status/1622943334858911748 [https://perma.cc/M73A-L2AP] [https://web.archive.org/web/20230210153936/https://twitter.com/BAPEOFFICIAL/status/1622943334858911748].