US-based Game Over, Inc, a growing regional provider of athletic sportswear apparel, has filed a lawsuit charging Nike, Inc and its advertising agency, Oregon-based Wieden & Kennedy, Inc, with unfair competition surrounding a basketball-related dancing style that is surging in popularity.

The suit, filed today in the United States District Court for the Eastern District of New York, alleges that Nike and Wieden & Kennedy misappropriated Game Over's "Shakin'" program - a form of modern street dance mixed with basketball dribbling which was designed to aid in the marketing and selling of Game Over's athletic sports wear. The complaint cites violations of unfair competition law under the Lanham Act and New York State law.

"We hope to bring to light on a broad scale the injustices in this classic David and Goliath case," said Frederick A. Tecce, Esq., patent attorney with McShea\Tecce in Philadelphia and former prosecutor with the US Attorney's office.

The dispute stems from Nike's February 2001 airing of an advertising campaign featuring basketball players performing the Shakin' dance form to sell Nike products. In 1998, well prior to the ad launch, Game Over - a small, minority-owned enterprise - developed Shakin' as a means of commercialising its full line of athletic sportswear as well as expanding its inner city youth outreach program.

As originally conceived, Shakin' was a basketball handling competition that combined basketball, music and breakdancing. Game Over took Shakin' to New York City youth groups and sporting events where they demonstrated and taught the technique. The company also sponsored contests and high school tournaments. The youth, regardless of their age, sex or size, could engage in a competition where they would be judged on skill, originality and talent. The marketing strategy connected the physical expression "Shakin'" with the Game Over product line in the minds of youths and their parents.

The connection proved to be highly successful. On March 20, 2000, Game Over Founder Eric Hicks was featured as that week's "Hometown Hero" on the CBS affiliate "News 2." During the broadcast, Hicks explained how Game Over and Shakin' disciplines youths and encourages career development beyond mere "hoop dreams."

On July 25, 2000, Game Over, Hicks and the Shakin' program were again chronicled on the Fox Network's "Good Day New York" show. The program showcased ball handling and Shakin' competitions.

Then, Nike launched its ad.

"Since the Nike ad, we've clearly seen a case of product confusion in the minds of consumers resulting from unfair competition by Nike," said Tecce.

"The injustice here is twofold," he explained. "First, Game Over is a small business that can't afford the millions needed to hire professional athletes to pitch their product. Eric Hicks and his partner devised a cost-efficient way to market their goods by sponsoring tournaments and the Shakin' contests. Now, Nike comes along with all their billions and wipes out that unique thrust of Game Over's program.

"Moreover," added Tecce, "this was a business dedicated in part to helping inner city youths, primarily through the Shakin' program. Nike's actions have impaired that goal by undermining both the identity and integrity of the contest sponsor."

Eric Hicks launched Game Over in 1993. He was a walk-on basketball player at St. Bonaventure University in New York and, after college, returned to the playgrounds and parks of the city to start his enterprise.

"Eric wanted his business to be an inspiration to inner-city kids and to help them realise there are other avenues for success, in addition to striving for NBA stardom," explained Tecce. "His efforts are directed towards being a positive role model and steering youths to pursue other careers, such as law, medicine and business. That process begins with talking to kids and grabbing their attention."

Game Over is seeking damages and injunctive relief.