Already, LLC v. Nike, Inc.

Supreme Court of the United States · 2013 · Federal Courts

568 U.S. 85 (2013)

Updated August 1, 2026

Federal Courtsvoluntary cessationmootnesscovenant not to sueArticle IIIstandingdeclaratory judgmenttrademark invalidity

Facts

Nike alleged that Already's Soulja Boys and Sugars shoes infringed and diluted Nike's Air Force 1 trademark, and Already counterclaimed that the trademark was invalid. After the litigation began, Nike issued an unconditional and irrevocable covenant not to sue Already, its related entities, distributors, employees, and customers for any trademark, unfair competition, or dilution claims based on Already's existing footwear designs and any colorable imitations of them. Nike then dismissed its own claims with prejudice and argued that the covenant mooted Already's invalidity counterclaim. Already responded with affidavits about planned new shoe lines, investor reluctance, and alleged retailer intimidation, but did not identify any planned shoe that would arguably infringe Nike's mark while falling outside the covenant.

Issue

Whether Nike's covenant not to enforce its trademark against Already's existing products and any future colorable imitations mooted Already's counterclaim seeking a declaration that the trademark was invalid. More specifically, the question was whether Nike met the voluntary cessation standard by showing it was absolutely clear the challenged enforcement conduct could not reasonably be expected to recur.

Rule

A defendant's voluntary cessation moots a case only if the defendant carries the formidable burden of showing it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur. In evaluating whether a covenant not to sue satisfies that burden, a court considers the covenant's breadth and whether the party asserting jurisdiction has concrete plans to engage in conduct not covered by the covenant; speculative injuries that would not independently establish Article III standing do not preserve a live controversy.

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Summit Peak Apparel, based in Denver, sued rival designer Marisol Vega in federal court alleging infringement of Summit Peak’s registered logo on her current jacket line. After Vega counterclaimed for a declaration that the logo was invalid, Summit Peak dismissed its claims with prejudice and issued an unconditional, irrevocable covenant not to sue Vega, her employees, distributors, retailers, and customers for any trademark, dilution, or unfair competition claims based on her existing jacket designs and any colorable imitations of them, whether sold now or later.

Vega insists her invalidity counterclaim remains justiciable, but she cannot identify any planned product outside the covenant. What is the strongest argument that the case is moot?

Explanation. Under the majority opinion, voluntary cessation moots a case only when the party asserting mootness carries the formidable burden of showing it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur. A broad, unconditional, irrevocable covenant extending to existing products, colorable imitations, and the counterclaimant’s business network can satisfy that burden. If the party asserting jurisdiction identifies no concrete plans to engage in conduct outside the covenant, no live Article III controversy remains.