Sorry for the wait good people, life ya know! Welcome to another week and another #IPThursday! This week we’ll do one on one of the most infringed trade marks in the world. The adidas 3 stripes.
I’ll start our story in the very beginning, as far back as the 1st World War…..Well soon after the 1st World War, with this man Adolf…..Dassler. Not the most famous Adolf. Although after WW1…….Dassler joined Hitler’s Nazis for WW2.
Anyways, thats besides the point. After WW1, Dassler decided to start producing shoes. He got his little brother Rudolph to help him out. I really should get my lil brother or sister to help me out with these threads too….
Adolf and Rudolph had a falling out, then Rudolph went and started his own shoe company Puma, which made them bitter rivals in the process. Puma would of course go on to be hugely successful as well.
Fast forward to the year 1936. Adolf decided to take his Dassler shoes to the Olympics. He managed to get American sprinter Jesse Owens to wear the shoes and from there, his Dassler shoes became super popular!
He changed the name of his company to Adidas (which is a play on his name Adi+Dassler=Adidas) a few years later and it has grown to become one of the biggest clothing brands in the world.
Adidas is probably most famous for their 3 stripe trefoil logo. From its early days, the company was incorporating 3 stripes on everything and were calling themselves the 3 stripes company.
In recent years, Adidas has made their logo into a triangle shape that looks like a mountain sloping upwards. Both are used together at times, but the stripes are whats used on most of their clothing.
Naturally, adidas have filed various trade marks in different countries to protect their three stripes. In many instances, they have sought protection against any 3 stripes used in clothing in any format. Sounds incredibly harsh…
That is, they have the right to prevent any clothing manufacturer from adding three stripes to their clothing in any colour whatsoever.
The problem adidas faces is that thousands of companies around the world have tried to or are actively trying to imitate their 3 stripes design. One of the issues faced by Adidas was from the Belgian company Shoe Branding Europe.
In July 2009, Shoe Branding filed a trademark application in the EU for a mark with TWO stripes on footwear. This, of course, naturally angered Adidas as they believed this was infringing on their three stripes logo.
Make no mistake, Shoe Branding is not the first or only company to try and copy adidas Stripes. Many clothing manufacturers out there are making 2, 3 or even 4 stripe clothing. I’ll Adidas v Pepkor next time, where Pep and Ackermans here in SA were making clothing with 4 stripes.
But thats for next time. When Adidas became aware of Shoe Branding’s application, they opposed it on the basis that it infringed on their registered three stripes trade mark.
Adidas argued that Shoe Branding’s TWO stripes mark would “take unfair advantage and be detrimental to the distinctive character or repute of Adidas’ 3-stripes mark.”
The EUIP Office dismissed Adidas’ claims. They ruled that in order for Adidas to cry foul, whoever the infringer is must have copied their design very closely (ie. Used the same number of stripes in the same manner).
The board did not feel that the use of the two stripes in that manner would be detrimental to Adidas.
Adidas weren’t happy about this and they appealed the decision at the EU General Court, this case went the other way. The General Court ruled that the EUIPO Board was wrong for saying that the marks were not similar.
The court found that they were indeed very similar. Two Stripes vs Three Stripes do closely resemble each other and Shoe Brand is clearly taking unfair advantage of the Adidas trade mark.
Ehy, I kinda agree with this. Unless you are fashion savy, you may confuse the 2 stripes with the 3 stripes. Just imagine your African parent buying you clothing. There is a big chance they pick up any stripes thinking its adidas. I am of course, only joking😂😂😂
With the shoe (pun intended) now on the other foot, Shoe Branding Appealed the decision in the European Court of Justice, the highest Court in the EU. They lost the case again and the marks were held to be similar each other. Case done? Nope! There was a huge plot twist coming!
So Shoe Branding decided to initiate a separate case. They applied to have the Adidas trade marks removed from the EU register on the basis that it wasn’t distinctive. This was basically a suicide bomb. If I cant have the stripes, then no one can!
Shoe Branding argued that adidas’ 3-stripe mark lacks the distinctiveness and source-identifying character required for trademark protection.
To Adidas’ shock and dismay, the EUIPO’s Second Board of Appeal agreed, holding that adidas’ 3-stripe mark, when it is filed simply as a black and white format, amounts to a mere decoration and lacks “secondary meaning” or “acquired distinctiveness”.
This is because when you file a logo or pattern trade mark in black/white then you have protection for all colour combinations.
As y’all know, a trade mark has to be capable of distinguishing in order to be registered. Certain images, can not qualify as a trade mark if they are too simplistic.
If simple patterns and images are registered, then that could stifle creativity. That is why we don’t grant trade marks for generic terms and figures.
Adidas will likely appeal this. There’s huge money involved in this stripe design. I don’t know if they’ll be successful, the 3 stripes are a basic design but would love to hear your thoughts! Big lesson: Make sure your designs are not simplistic if you want to use them as a ™️
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