Adidas and its stripes

Adidas is known for its trademark lawsuits. The German sports giant is always on its guard when it comes to competitors’ designs. In January, another exciting judgement was handed down on the famous three stripes.

The facts of the case date back to 2007. At that time, Adidas complained about Thom Browne’s three-stripe design. The latter showed understanding and changed to the four-stripe design. A few years later, it was clear that this was not enough for the German sportswear manufacturer. However, the dissatisfaction only came to a head when Thom Browne began to achieve great success and establish itself in the sportswear business. In June 2021, Adidas sued Thom Browne, seeking to prohibit him from using stripes and to obtain a payment of more than $7.8 million. The judgement was handed down in January 2023.

Adidas’ complaint: Thom Browne’s design was too similar to the brand’s own three-stripe design and therefore constituted an infringement of its own trademark rights. In fact, Tom Browne usually uses four stripes in his creations that enclose an item of clothing. The stripes border socks, for example. The designer demonstratively wore such socks to the court hearing. According to Adidas, Thom Browne uses the four stripes to draw attention to the sportswear he designs. In this way, he exploited Adidas’s fame. This has led to cooperations with athletes, such as Lionel Messi. Lionel Messi had previously been an Adidas ambassador. Thom Browne defended himself with the argument that stripes are a common design element for clothing. He also served the luxury goods market, so there was no direct competition between the two companies.

The jury concluded that Adidas could not prove that Thom Browne had infringed the sports giant’s trademark. The reason given for this was the different number of stripes – four stripes instead of three, which ruled out a likelihood of confusion.

This result was not to be foreseen. The case law, which has often dealt with the three stripes, decides depending on the individual case. In 2016, the European Court of Justice (ECJ) affirmed a likelihood of confusion in the case of a trade mark that used two stripes instead of three. However, in 2019, with the same opposing party, the ECJ ruled that the three stripes was rightly cancelled from the register as an EU trade mark. It may be surprising at first that the judgments are different in what at first sight appear to be the same case. According to the court, the small but subtle difference lay in the arrangement of the stripes, i.e. the design decision. The first case concerned three diagonal stripes on trainers. Here, the court recognised a likelihood of confusion for consumers, because Adidas used diagonal stripes typical of the brand, especially on trainers, an iconic recognition value. The second case involved three vertical black stripes on a white background. According to the court, consumers do not necessarily associate this with Adidas. It was simply a decorative element that was not associated with any brand. According to the court, Adidas could not prove the opposite.

Adidas shows great disappointed after the current ruling and indicates that it will not hesitate to take legal action. The company is very concerned about defending its own intellectual property. Past decisions have shown the finer points that can matter.