Dribbling dance moves spark a suit - News - Game Over sues Nike over television ads - Brief Article

Dance Magazine, Nov, 2001 by Kate Mattingly Moran

Inner-city dance moves are the focus of a lawsuit filed against Nike by Game Over, a small, New York-based basketball-apparel company. The suit examines a popular Nike television commercial called "Freestyle," wherein basketball players, one by one, show off their ball-handling and dancing skills. Game Over contends that Nike based "Freestyle," which first aired in February of 2001, on the Shakin' competitions that Game Over created and uses to sell its products. If nothing else, the multimillion-dollar suit, which alleges that Nike has confused consumers by co-opting Game Over's marketing scheme, shows how valuable dance is in today's advertising world.

According to the plaintiff, the competitions in question were launched in 1998 by Game Over founder Eric Hicks, who grew up in the Bronx and learned the dribbling dance moves on the street. The events combine dancing and ball-handling set to hip-hop music. They've taken place in Las Vegas and New York City. Footage of the contests has appeared on television shows, including Fox News's Good Day New York. In court papers, Hicks says he developed Shakin' "to provide guidance and assistance to inner-city children in an effort to develop useful life skills" such as creativity, discipline, sportsmanship, and dedication.

But the competitions have also been good for Hicks's company. Like The Gap, which recently launched ads featuring dancers two-stepping and swing dancing, Game Over has found that cool moves sell products--clearly a connection that Nike also recognizes. To create a buzz about their sportswear, Game Over shows videos of its Shakin' competitions at trade shows. Hicks believes Nike copied the Shakin' concept after seeing one of these tapes or a live Shakin' event.

Game Over says Nike's commercial, created by the ad agency Wieden + Kennedy, evokes the feeling of a Shakin' competition. Professional and nonprofessional players appear one after the other, doing mind-boggling dance, dribbling, and ball-handling moves set to hip-hop rhythms made by sneakers squeaking and balls bouncing. If Game Over can point to specific choreography in "Freestyle" that matches movement phrases seen in one of Game Over's videos, it could help prove that Nike made its commercial after seeing Shakin' moves.

The unfair competition lawsuit, filed June 15 in U.S. District Court for the Eastern District of New York, states: "Defendants Nike and Wieden + Kennedy are knowingly and willfully using Game Over's Shakin' program, including its distinctive concepts, expression, and features." The suit contends that, since Nike began using the Shakin' concept to sell its products, Game Over has "lost the good will associated with the Shakin' program" and that the Nike commercial has confused consumers, who are now unsure about whether the products advertised are produced by Nike or by Game Over.

"This is what we call a `reverse confusion' case," explains Hicks's attorney, Frederick Teece. "That is, Nike is so large, and their advertising so extensive that, despite the fact that Game Over may have been the originator of this marketing program, consumers will forever associate the program with Nike," leaving many sportswear consumers assuming that Game Over is nothing but a Nike knockoff. Such confusion will hurt his client's business, says Teece, and might even have an adverse affect on the Shakin' program. "In inner cities, big companies are looked at with suspicion. They're seen as part of the establishment and thus looked down upon." If big-city consumers associate Game Over and its Shakin' program with Nike, they're less likely to buy the products and take part in the events, he says.

On July 9, Nike and Wieden + Kennedy filed their response to Game Over's complaint and denied allegations. But neither Nike nor the advertising company responded to phone calls requesting an interview, and the court document doesn't provide details of their defense. Game Over is seeking an unspecified amount in damages from Nike and also hopes the court will order the sportswear giant to stop running "Freestyle."