Overview:
Nike sues StockX for trademark infringement, false advertising, and counterfeiting. As this case heads to trial, will consumer surveys be a shoe-in strategy for litigators?
Best Foot Forward
Nike, a global sports brand, and StockX, an online marketplace and sneaker reseller, have been embroiled in a legal battle that encompasses trademark law, digital innovation, and marketplace accountability. The center of the dispute is StockX’s “Vault” NFTs, which are non-fungible digital tokens tied to physical Nike sneakers, and Nike’s claims of trademark infringement, counterfeiting, and false advertising. As of March 2025, the court had granted partial summary judgment to Nike on the counterfeiting claim; the remaining issues were scheduled for trial between June and November of 2025.
Timeline
February 3, 2022 Nike filed suit in New York federal court, alleging that StockX minted NFTs (non-fungible tokens) using Nike trademarks without authorization, leading to consumer confusion. StockX argued that NFTs are digital receipts for physical goods and invoked the doctrines of first sale and nominative first use in April 2022. It added counterfeiting and false advertising claims in November 2022. In March 2025, the court granted summary judgment on StockX’s liability for selling counterfeit sneakers, but ruled that the false advertising, trademark infringement, and related claims would proceed to trial.
Trademark & NFT: Virtual Product vs. Digital Receipt
How are these arguments being made, and how might consumer surveys help resolve these issues? Nike claims StockX’s Vault NFTs, featuring its trademarks, mislead consumers into believing that Nike authorized or endorsed the program. StockX countered that their NFTs serve as authenticated proof of physical ownership, which is comparable to a standard physical receipt.
False Advertising Claims and Trademark Defenses
Nike alleged that StockX’s authenticity claims (e.g., “100% Authentic”) are false and misleading to consumers, but StockX argues that these guarantees are not material to purchases. When it comes to trademark infringement defenses, StockX has invoked two legal doctrines: the first sale doctrine, which permits the resale of trademarked items after purchase, and nominative fair use, which allows the use of trademarks to identify products without implying endorsement.
Where measures of materiality, consumer perception, and consumer confusion are at issue, either party may use a consumer survey. A likelihood of confusion survey could measure whether NFT purchasers believed Nike approved or was involved with Vault NFTs. A materiality survey can measure whether the NFTs and associated authenticity claims influenced purchasing behavior, which allegedly harmed Nike’s brand or sales. Similarly, a false or deceptive advertising survey could measure whether buyers clearly understood tokens to represent verified access to physical goods, not Nike-endorsed digital assets. Such a survey may also show whether authenticity slogans are open to multiple reasonable interpretations, which weakens claims that they’re false.
Emblematic Tension between Resellers and Brands
Traditional trademark law and novel digital sales channels, including NFTs, can experience friction. The decision to defend a senior mark can be costly—but it can also be worthwhile, when the brand is central to marketing and sales strategy. Pitting Nike’s trademark rights against artistic expression is central to the controversy over how far brands should go to protect their equity in new online marketplaces. Whether NFTs using infringing marks constitute trademark infringement (or possibly trademark dilution) is being debated in several forums.
Resale markets are another venue where senior brands, such as Nike, make decisions about whether to pursue mark protections in the face of counterfeiting. When disputes between resellers and brands reach court via trademark infringement claims, courts must ask whether the shoe fits.
Will Survey Research be a Shoe-In at Trial?
Where disputes arise from issues around perceived authenticity and marketing communications, consumer surveys are a perfect fit. Properly conducted consumer surveys are commonly accepted as evidence in trademark infringement disputes, providing litigators with objective measures of how consumers interpret “verified authentic” NFTs, potentially bolstering either side’s argument. Likelihood of confusion surveys can measure confusion as to the source and/or affiliation of an NFT.
Nike vs. StockX explores the limits of resale markets, the First Amendment, fair use, and the importance of authenticity and transparency in advertising practices. If you’re a brand navigating legal issues around resale, digital representation of goods, or licensing, consider a legal strategy backed by surveys.
Contact MMR Strategy Group, an IMS Legal Strategies company, for more information on how consumer perception surveys can help make your case.