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Adidas stuff is cool, it just is. I grew up in pair after pair of adidas trainers, one of my best mates wears nothing but Sambas (that’s the coolest thing about him), they reinvented the football boot with the iconic Predator, there was Run-DMC (say no more), they had tie-ins with Star Wars and created the coolest TV advert of all time. Oh, and David Beckham too. Not sure about Kanye though.
But the 3 stripes being cool isn’t enough to when it comes to its trademark of the same description (technically: ‘three parallel equidistant stripes of identical width, applied on the product in any direction’). Adidas registered the stripes as a figurative trademark in 2014, but in 2016 a Belgian company, ‘Shoe Branding’, successfully applied to have the mark invalidated on the grounds that it was devoid of distinctive character. Furthermore, adidas had not proved that the mark had acquired distinctive character through use in Europe and in June this year, the General Court upheld this ruling. The judgement dealt with a number of technical points surrounding the nature of the mark as registered and alleged variations of it through use on different adidas products. It’s all a bit boring and nerdy, but apparently 3 stripes aren’t always 3 stripes… And that was important when it came to what adidas argued; that the mark had acquired distinctive character through use and as evidence, adidas produced evidence in the form various images of their apparel bearing said stripes. To try and put it simply, minor variations of a trademark may be permitted to be used in order to allow the owner to legitimately exploit their mark. However, the alleged simplicity of adidas’ mark meant that the variations of it (e.g. colour contrasts and positioning) were deemed to be significant and therefore could not be considered as permissible evidence as to adidas’ use of the mark as registered. All was not necessarily lost though, adidas also produced 23 market surveys that were conducted between 1983 and 2011, but again given the technicalities regarding the differences between mark as registered and the mark as it appeared on their products, 18 of these surveys were discounted. But we now know from the judgement that 57% of Germans recognised the mark, compared to 30% in Romania. However, as was the case in Nestlé, the permissible evidence did not cover all the relevant territories and adidas failed to show the 3 stripes had acquired distinctiveness. Overall though, the ruling seems very pedantic in relation to a simple mark (and I usually like pedantry when it comes to this sort of thing).
I mean there’s also a certain irony here; adidas have been relentless in enforcing their trademarks when it comes to competitors using parallel stripes; they’ve got a high profile list of victims that includes Walmart, Polo Ralph Lauren, Abercrombie & Fitch and Sketchers. Founded in 1924 by Adolf Dassler along with his brother Rudolf, the company was originally known as Gebrüder Dassler Schuhfabrik with Adi acquiring the 3 stripes branding from a Finnish company Karhu Sports; reportedly for 1,600 Euro and two bottles of whiskey. That’s all well and good, but the history of adidas and trademarks gets even juicier – Adolf and Rudolf fell out in 1948 with Rudolf establishing Puma, and adidas as we know it today was born (Adolf Dassler – Adi Dassler – adidas, geddit?!) Adidas is now the second largest sportswear company in the world (after Nike) having generated nearly 22 billion Euro’s worth of revenue in 2018. And Puma went on to establish the ‘global appreciation’ approach in trademark law (sort of).
But what’s Puma’s Formstripe trademark got that adidas’ stripes hasn’t? Or Nike’s Swoosh for that matter? And what has the company been doing if it hasn’t actually been ‘using’ its 3 stripes trade-mark?! It seems that coolness doesn’t equate to acquired distinctiveness. Or that that your brand, scale, turnover and even your trademark victories are enough to make a point. Maybe it’s just that most of Europe, or the CJEU for that matter, doesn’t recognise a sweet pair of kicks when they see it (ironically enough, one of adidas’ biggest successes has been their collaboration with Kanye West and the ‘Yeezy’ trainer which mostly don’t feature a 3 stripe in sight).
But hang on, let’s not blow this out of proportion; we’re talking about one trademark in a portfolio of many and the 3 stripes continues to be alive, well and registered. A search on the TM database reveals that adidas do indeed have 3 stripes registered as a variety of 3D or figurative marks cover-ing footwear and clothing in the form that we all know and love. Given the specifics of these as registered, compared to the simplicity of the contested mark in this case, it’s unlikely that it will make a huge amount of difference. So the impact of this case may be questionable, or at least it might not be felt for a while yet, but it’s not so bad news for three of the most recognisable stripes in the world.
Originally Published Here 04/07/19.
