Media for Already LLC v. NikeAudio Transcription for Oral Argument - November 07, 2012 in Already LLC v. Nike
Audio Transcription for Opinion Announcement - January 09, 2013 in Already LLC v. Nike
John G. Roberts, Jr.:
As Already's counsel told us at oral argument, Once bitten, twice shy.
But here, there's no reason for Already to be so shy among Nike's competitors, Already is the one with a judicially enforceable covenant protecting it from litigation relating to the Air Force 1 trademark.
Finally, Already argues that as one of Nike's competitors, it inherently has standing to challenge Nike's intellectual property.
According to Already, letting Nike moot this case allows companies like Nike to register in brandish invalid trademarks in order to intimidate smaller competitors, avoiding judicial review by issuing covenants in the rare case where the little guy fights back.
Thus, Already argues simply as one of Nike's competitors, it has the right to challenge Nike's trademark.
Under this approach, even if Nike had never sued Already and even if Already had no plans to make anything resembling the Air Force 1, Already could still sue to invalidate Nike's trademark solely because Already and Nike both compete in the athletic footwear market.
We have never accepted such a boundless theory of standing.
In essence, Already's arguments boiled down to a basic policy objection that dismissing this case, allows Nike to bully smaller innovators, lawfully operating in the public domain.
Now, accepting Already's theory may benefit the small competitor in this case, but lowering the gates for one party lowers the gates for all.
As a result, bigger companies with more resources will have standing to challenge the intellectual property portfolios of their more humble rivals, not because they're actually threatened by any particular patent or trademark, but simply because they are competitors in the same market.
This would further encourage parties to employ litigation as a weapon against their competitors, rather than as a last resort for resolving actual disputes.
So, Already's only legally cognizable injury, the fact that Nike took steps against to enforce its trademark is now gone and given the breadth and binding nature of the covenant cannot reasonably be expected to recur.
They're being no other basis on which defined the live controversy.
This case is moot and must be dismissed.
The judgment of the Court of Appeals is affirmed.
Our opinion is unanimous.
Justice Kennedy has filed a concurring opinion in which Justices Thomas, Alito, and Sotomayor have joined.