Two Fashion Industry Heavyweights Attempt to Earn Their Stripes | Adidas v Thom Browne (January 2023) Case Commentary and Opinion by Ernie Bell

Foreword

I will likely be showing my age by saying that, growing up you were ridiculed for turning up in public wearing any garment that had four stripes. Being able to afford apparel from the three stripe brand Adidas among other sportswear giants was in keeping with peer pressure in times of the past and should your parents have dared to venture off-piste and purchased a more budget friendly, wear-it-or-wear-nothing vestment bearing too many stripes, you risked being the butt of unfriendly mockery for turning up seemingly unaware of the latest fashion trends.

Background

Adidas is a world renowned German sportswear and apparel brand originally co-founded by two brothers; Adolf and Rudolf Dassler, in July 1924 in the town of Herzogenaurach, under the name?Gebrüder Dassler Schuhfabrik before they split owing to multiple feuds over everything from politics to each other's choice in women. Their rivalry continued long after their parting, creating the competing companies that are known today as Adidas founded by Adolf (Adi) and Puma by Rudolf.

Given that this particular familial rivalry has seen a number of public incidents come to the fore over the years, it is no surprise that one half of the duopoly in that of Adidas will at times feel aggrieved when a new player enters the arena.

Enter The Ring: Thom Browne

Thom Browne founded an atelier business in 2003 in New York. Thom Browne is now considered a global brand with over 50 stores with an expanded product range including ready-to-wear suits, footwear, accessories and a fragrance.?

?Round 1

?In 2021 Adidas filed a claim against Thom Browne stating that his signature striped collection imitated that of their own famous three striped brand and attempted to free ride on the goodwill garnered by Adidas' publicity; reputation and widespread promotion. Adidas claimed that consumers would find the two brands confusingly similar to one another and that Thom Browne infringed upon the rights to the adidas three stripe trade mark.

?Adidas asserted that they were alerted to and initially objected to Thom Browne's use of parallel striping on products in May 2007 and made a further objection to a design incorporating four bars in May 2018. The two parties engaged in subsequent back and forth negotiations after this but were unable to reach a resolution.

?Adidas sought damages to the amount of $867,225 (￡703,232) for what they believe they would have gained from Thom Browne had he obtained permission to use the stripe marks under license and the associated royalties therein. A further $7m (￡5,676,300) was sought by Adidas in recompense for profits made by Thom Browne in selling the alleged infringing goods.

?Three Stripes and You're Out!

?Thom Browne's lawyers asserted that quite simply "stripes are a common design" and portrayed their client as an "underdog" carrying the fight against a large corporation - also the argument that the two brands operated in two clearly defined and separate industries catering to different consumers.

?Adidas' representative pressed Thom Browne to describe the specifics of his products however in response, the designer merely applied that they were "tailored sportswear".

?An eight person jury found Thom Browne not guilty of infringing Adidas' trademark rights in a room incidentally containing many of his supporters adorned from head to toe in his apparel.

According to the BBC, court documents divulged that since 2008; "Adidas had entered into more than 90 court battles and signed more than 200 agreements in settlement relating to defence of its trade mark".

?Ernie's Conclusions

To draw conclusions on the merits of each side's arguments, I hark back to my own childhood memories of two and four striped clothing and the aforementioned playground banter. At the time, amongst ourselves we were under no illusion or confusion as to the origins or differences between branded Adidas wear and non-branded four stripe imitations. However I question whether our parents, the actual purchasers of the goods could well have been! This therefore, for me, raises the argument, at which point should the likelihood of confusion of a trade mark be applied in relation to public perception.?

If we are to apply a practical trade mark law approach, then it should apply at the point of the sale of the goods; where a decision of the mind, whether conscious or unconscious, would be made. In such a case, an uninformed member of the public may be unaware of the histories of these two brands could well be confused as to the origins of the goods when either are placed in front of them.

Conversely, to apply a more simplistic approach to the two brands and how they are operating in their respective markets - do the products look and/or feel identical or confusingly similar? Here, I am more inclined to side with the judgement due to the fact that the more informed consumer would of course know that the goods belonging to Thom Browne could not be those of Adidas and vice versa.?

?Could this be a knock-out? I think this one has not played out quite just yet.

?

?

= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =

Written by Ernriel (Ernie) Bell PQ Trade Mark Attorney (UK) and Founder of ProtectTM.com

?

?

?

Attention Parents: Please note the following are not examples of Adidas, Puma nor Thom Browne goods but are however some examples of two and four stripe clothing:

?

?

?

?

?

?

References

Adidas Corporate Website

https://www.adidas-group.com/en/

The History of Adidas and Puma

https://www.newsweek.com/history-adidas-and-puma-86373

Adidas v Puma: the bitter rivalry that runs and runs

https://www.theguardian.com/sport/2009/oct/19/rivalry-between-adidas-and-puma

Adidas vs Puma The Adidas and Puma Brothers

https://fabrikbrands.com/adidas-vs-puma-the-adidas-and-puma-brothers/

Dassler Brothers Feud

https://en.wikipedia.org/wiki/Dassler_brothers_feud

How Puma and Adidas Rivalry Divided Their Founding Town For 70-years

https://www.businessinsider.com/how-puma-and-adidas-rivalry-divided-their-founding-town-for-70-years-2018-10

Adidas and Puma

https://failurebeforesuccess.com/adidas-and-puma/

Thom Browne Presents The New Football Capsule Collection

https://www.nssmag.com/en/sports/24411/thom-browne-presenta-la-nuova-collezione-football

7 Things To Know Adidas v Thom Browne

https://news.yahoo.com/7-things-know-adidas-v-172447120.html

Adidas loses stripes row trademark battle with luxury designer Thom Browne - BBC News

https://www.bbc.com/news/world-us-canada-64261616.amp

Everything You Need to Know About the Adidas vs. Thom Browne Trademark Case [UPDATED]

https://uk.movies.yahoo.com/everything-know-adidas-vs-thom-130000249.html

48 Hours in Paris With Thom Browne

https://www.nytimes.com/2017/06/27/t-magazine/fashion/thom-browne-paris-spring-2018-behind-the-scenes.html

NEW MENS JOGGERS JOGGING TRACKSUIT BOTTOMS TROUSERS PANTS SIZE S-XXXL 4 stripes https://www.ebay.co.uk/itm/192248039586

?MyShoeStore Mens Track Suit Bottom Casual Elasticated Waist Tracksuit Bottoms Silky Joggers Jogging Jog Trousers Leisure Gym Sports Yoga Open Hem Pull On Pants https://www.amazon.co.uk/MyShoeStore-Elasticated-Tracksuit-Bottoms-Trousers/dp/B0778T9VF3/ref=asc_df_B0778T9VF3/?

#erniebell #intellectualproperty #ip #news #intellectualpropertymagazine #intellectualpropertynetworking #globalintellectualpropertyandbusinesslawyers #thetrademarklawyer #ipsolicitor #trademarkattorney #trademarkipprofessionals #trademark #thepatentlawyer #patentandintellectualproperty #trademarks #iplitigation?#iplawyers?#uksolicitors #usiplaw #stobbs #juliusstobbs #fashionandip #thefashionlaw #brunellaw #queenmaryintellectualpropertyinstitute #worldintellectualpropertyreviewforum #wipo #ipandme #bsn #careersinideas #ipinclusive #brandprotection #protecttm #propertymongoose #entertainmentlawandintellectualpropertysection?#intellectualpropertyprotection?#intellectualpropertylawandprotectionnetworkinggroup?