Hank's IP Brew — Issue #10

Howdy, y'all.

This week: an influencer finds out the hard way that building a brand on someone else's trademarks has a price tag — and it's $11 million. And sneaker companies are now signing college athletes at 16, which tells you something important about when the NIL clock actually starts.

Let's go.

AJ Dybantsa signed with Nike at 16. Darryn Peterson signed with Adidas at 16. Both went on to become two of the biggest college basketball stars of the 2025-26 season — Dybantsa averaging 25 points a game for BYU, Peterson a projected lottery pick out of Kansas. Both are now projected top-five NBA draft picks.

Both already had multi-year brand relationships before they set foot on a college campus.

That's the new baseline. Nike built Dybantsa a custom player-exclusive version of its GT Cut mid-season — hyper pink accents, cobalt blue branding, "AJ" tagging — and deployed it as a full marketing campaign. When BYU met Kansas in January, ESPN cameras were ready and the sneaker companies were watching. After the game, Adidas dropped content featuring Peterson on both its own account and Kansas's, under the caption "End of Debate." The athlete, the brand, and the university were aligned in a single marketing moment. That doesn't happen by accident. It happens because the brand relationship was built three years earlier.

What this changes

NIL as it's commonly discussed focuses on college athletes — kids who are already enrolled, already competing, already visible. But the major brands have moved upstream. They're identifying talent in high school, building relationships before the recruit commits, and arriving on campus with contracts already in place. Dybantsa's deal with Nike reportedly predates his enrollment at BYU. Peterson's Adidas relationship started during his sophomore year of high school.

The legal framework hasn't fully caught up. Most NIL education focuses on what college athletes need to know. Very little focuses on what high school athletes — and their families — should be thinking about before a brand approaches them. That gap is where mistakes happen.

What athletes and families should know now

If a brand is calling before college, the deal still needs the same scrutiny as a deal after enrollment. A few things that often get missed at the high school stage:

The exclusivity clock starts immediately. If a 16-year-old signs an exclusivity clause, they may be locked out of competing brand relationships for years — potentially including the brand their college team wears. School-sponsor conflicts don't disappear just because the deal was signed before college.

Early deals can shape the pro contract. Agents and pro teams pay attention to what brand relationships exist coming in. A premature exclusive deal with a smaller brand at 16 can complicate negotiations with a major at 18. The structure of early deals matters more than it looks.

Name and brand registration should happen early. If an athlete's name, nickname, or personal logo has commercial value — and brands are willing to pay for it — it's worth registering as a trademark. That registration becomes leverage in every future deal and protection against unauthorized use. Most families don't think about this until college. The brands do.

The bigger picture

When the NIL era opened in 2021, the common framing was that college athletes were finally getting a fair deal. What Dybantsa and Peterson's situations show is that the market has moved past that framing entirely. For elite talent, NIL isn't a college benefit — it's a career that starts in high school. The infrastructure around that career (contracts, IP protection, brand strategy) needs to start then too.

Nicholas Tuinenburg had a following. His brand, Divide The Youth, had an aesthetic. And for a while, it had a business model: buy replica sneakers, sell them through Discord and affiliate links, and use his social media presence to drive traffic to the whole operation.

The sneakers in question were "Division Dunks" — shoes that copied the silhouette, proportions, and feel of Nike's classic Dunk shoe design, but carried Divide The Youth branding instead of the Swoosh. The argument from the defense was that the products weren't pretending to be Nike. Different name, different logo, clearly marketed as a separate brand.

The jury wasn't buying it.

In March, an eight-person jury in the U.S. District Court for the Central District of California found Tuinenburg and Divide The Youth liable for counterfeiting, trademark infringement, and trade dress infringement. Total damages: $11 million — including $8 million in statutory damages for direct and contributory counterfeiting and $3 million in punitive damages. For context, Tuinenburg's own accounting suggested he'd made about $56,000 in profit from the shoe sales. The damages were roughly 200 times that.

Why trade dress is the part to understand

You've probably heard of trademarks — words, logos, and symbols that identify a brand. Trade dress is the next level: the overall look and feel of a product that serves as a source identifier even without any logo at all. Nike's Dunk has it. That specific silhouette, those proportions, that design vocabulary — they're recognized as Nike in the marketplace even before you see the Swoosh.

Nike's lawyer put it plainly: the Dunk trade dress can be infringed "even if you remove the Swoosh." The jury agreed. You can swap out every logo, rename the product, and build your own brand around it — and if the look and feel is close enough to trigger consumer confusion, you're still infringing.

This matters for anyone building a brand adjacent to a major one. "Inspired by" can cross into infringement. The line isn't always obvious, but this verdict is a useful marker for where it is.

The social media amplification problem

What made Tuinenburg's situation worse than a typical counterfeiter was the use of his platform to drive sales. Nike argued — and the jury agreed — that he didn't just sell products; he built an ecosystem. Affiliate links. Discount codes. A Discord channel. Purchasing guidance for followers. When you use your audience as a distribution network for infringing products, you're not just liable for what you sold directly. You're potentially liable for what your audience bought as a result of your direction.

That's the contributory infringement theory, and it matters for any creator who promotes products — even products they didn't make. Vetting what you endorse isn't just brand hygiene. It's risk management.

The takeaway

If you're building something that lives in the aesthetic neighborhood of a major brand — fashion, footwear, streetwear, anything where look and feel is the product — get it cleared before it scales. Trade dress doesn't require a logo. It requires consumer confusion, and consumer confusion can be manufactured by proximity alone.

See you next time,

Hank

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About Hank's IP Brew

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