The case pits Nike against Nicholas Tuinenberg, an influencer and founder of the Divide The Youth brand, who was ordered to pay nearly USD 11 million for trademark counterfeiting and infringement (Nike, Inc. v. Nicholas C. Tuinenburg et al., U.S. District Court for the Central District of California, Order Granting in Part and Denying in Part Plaintiff’s Motion for Summary Judgment, March 19, 2025, Case No. 2:23-cv-10495).
The influencer had put in place a well-organised system for distributing products that infringed Nike’s rights. He promoted these products through his social media channels, shared purchase links, offered promotional codes, and collaborated with third-party sellers.
This conduct went far beyond that of a passive influencer. He actively contributed to the sale of the products by directing consumers towards their purchase.
Although not all influencers go this far, practices such as affiliate links, promotional codes, and redirects to e-commerce platforms are common features of influencer marketing.
1. The Core of the Dispute: Trade Dress
The central issue in the dispute concerned sneakers marketed by Tuinenberg under the name “Division Dunks”, which reproduced the design of Nike’s famous Dunk shoes.
Although the shoes did not bear the Nike logo (the Swoosh), this did not prevent liability from being established.
In the United States, trademark law extends beyond logos through the concept of trade dress. Trade dress protects the overall appearance of a product, including its shape, design, and combination of visual elements, provided that these features are distinctive and enable consumers to identify the product’s source. In other words, even without copying a logo, reproducing the recognisable appearance of a product may be sufficient to constitute infringement (inta.org).
This is precisely what the court found in this case. The visual similarities between the Division Dunks and the Nike Dunk were considered sufficiently close to create a likelihood of consumer confusion.
2. Molly Sims: Between Promotion and Potential Liability
This case can be compared to a more recent dispute involving influencer Molly Sims.
In that matter, the owner of the “Brow Boost” trademark brought an action not only against a company marketing a competing product, but also against the influencer who had promoted it. Molly Sims sought dismissal of the claims against her at an early stage of the proceedings.
On August 6, 2021, Federal Judge Cormac J. Carney denied the motion to dismiss.
Although the case was not decided on the merits, the ruling is significant because it demonstrates that the influencer’s potential liability could not be ruled out at the preliminary stage. In other words, simply promoting a disputed product may, in certain circumstances, expose an influencer to trademark-related claims.
The comparison with the Nike case is nevertheless worth qualifying. Nicholas Tuinenberg had established a far more structured commercial system with direct economic involvement. Molly Sims, by contrast, occupied a more traditional promotional role as an influencer.
Yet both cases reflect a common idea: influencers are increasingly viewed not merely as passive intermediaries, but as participants in the dissemination of products that may ultimately prove to be infringing.
3. The French Legal Perspective
Unlike the United States, French law does not recognise an equivalent concept to trade dress.
Three-dimensional trademarks could theoretically protect the shape of a product, but obtaining such protection remains difficult in practice. Design rights may also be relied upon to protect a product’s appearance. However, unlike trade dress protection, registered designs are subject to a maximum term of twenty-five years, including renewals.
Other legal avenues remain available, including unfair competition and parasitism. The latter consists of taking advantage of another company’s investments, reputation, or know-how without incurring the associated costs.
In France, influencers have so far been targeted more frequently under consumer protection law, particularly for misleading advertising and unfair commercial practices, than under intellectual property law. Law No. 2023-451 of 9 June 2023 on commercial influence and the regulation of influencer activities on social media (JORF n°0133 du 10 juin 2023) demonstrates a clear willingness to address abuses linked to influencer marketing.
The Nike case may nevertheless influence the strategies of trademark owners, who could increasingly view influencers as integral links in the distribution chain of infringing products. Counterfeiting may also attract criminal sanctions. Where knowledge of the infringement can be established, influencers may face criminal liability, including imprisonment.
Ultimately, this case is likely to encourage influencers to exercise greater caution regarding the products they choose to promote.
4. The EUIPO’s Perspective on Influencers and Intellectual Property
This development forms part of a broader trend towards the professionalisation of influencer marketing.
In its 2025 report Influencers and IP (European Union Intellectual Property Office (EUIPO), Influencers and IP, Observatory on Infringements of Intellectual Property Rights, November 2025: euipo.eu), the EUIPO found that 96% of surveyed influencers believe they have a responsibility towards their audience, while 92% state that they systematically verify the authenticity of brands before entering into collaborations. The study also revealed that only 5% of respondents admitted to having promoted counterfeit products during the previous twelve months.
While these findings suggest growing awareness of intellectual property issues among influencers, the Nike v. Tuinenberg case serves as a reminder that vigilance remains essential. Under certain circumstances, influencers may now be regarded as genuine participants in the commercialisation chain of the products they promote.
About IP Twins
IP Twins assists brand owners in protecting their intellectual property rights online. Our services include trademark watching, domain name monitoring, online brand protection, anti-counterfeiting enforcement, domain name dispute resolution, and strategic advice relating to digital brand protection.
As online commerce and influencer marketing continue to evolve, IP Twins helps businesses identify and address infringements affecting their trademarks, designs, copyrights, and other intellectual property rights across websites, marketplaces, social media platforms, and domain names.