The alleged loss of their three-stripe trademark by Adidas has attracted some headlines of late. While it’s true this can be read as a “warning” by European courts against the maximalist approach of Adidas toward their monopoly on stripes, the decision is not as definite and radical as may appear. We explain why.
So, did Adidas lose its stripes?
Not really. The General Court of the European Union has cancelled one particular trademark that represented their iconic three-stripe design, as Adidas was unable to prove it was distinctive enough.
The trademark in question is described as “three parallel equidistant stripes of identical width, applied on the product in any direction”.
The problem here is that Adidas seemed to be trying to protect a whole concept (three parallel stripes, in any color, any size, any position) using a very particular representation (left), while the Court simply reminded a pretty basic trademark law principle: protection is granted for whatever is applied for. The admitted use variation is very narrow, especially when a trademark is so simple as this one.
As an illustration, the Court did not admit that three white parallel stripes on the sides of colour sneakers proved used of the trademark. Also, the Court was very strict regarding variations of the mark, accepting only the evidence showing the stripes in the same colour and even proportion ratio.
This decision can still be appealed.
¿Since when does Adidas own the three-stripe brand?
The history of Adidas’ three-stripe brand is quite interesting and even exemplary for any firm aiming at having a strong brand identity.
The founder of the brand, Adolph “Adi” Dassner, was looking in 1948 for a distinctive element to set apart his shoes from those of his brother Rudolph, who had just founded Puma. To this end, he acquired a three-stripe design from Finnish firm Kahru (still in existence too, by the way). Legend has it that the price has less than 2,000 dollars and two bottles of whiskey.
Since then, Adidas has used the three stripes ubiquitously and protected them energetically, filing for multiple position trademarks to cover for multiple uses:
Recently, thanks to the 90’s comeback and athleisure trend, Adidas has needed to redouble their efforts to protect their stripes. All brands have been using them as inspiration for their athletic wear.
So far we have known of legal battles with C&A, Marc Jacobs, H&M, Forever 21, Bally, Skechers and Fútbol Club Barcelona, amongst others. Cases have revolved around the use of parallel stripes mostly in two locations: sneakers and outer sleeves.
Up until now these actions have been mostly favorable to Adidas, even to the point that courts have extended their dominion to two and four-stripe designs.
Regardless of the result in a potential appeal, we don’t think this decision will have a major impact on Adidas’ brand identity. They still have a very solid trademark portfolio with all sorts of registrations covering specific uses. Maybe from now on they will need to register every variation and colour they want to use, and describe it more carefully (ie., explain it is a repeated pattern and not a static image, for instance). Also, they may become less ambitious when attacking others - let's not forget this cancellation arises from a case started by Adidas themselves against a competitor.
This decision may have an impact on a the minority of brands that rely on extremely simple trademarks. These may need to review their portfolio to make sure they are actually covering what they want to use.
In short, the most important lesson from this story is that in order to have a solid brand identity one must consistently register what one uses, and consistently use what one registers. Our advice, especially to fashion companies, is that design and legal teams must work hand in hand. There is no point in registering a logo or some distinctive feature if every season there are variations to it. In the end, these lose distinctiveness and protection.
In this respect, Adidas has been doing a pretty good job for the last 60 years - so much as to being able to monopolise a design as simple as three parallel stripes for a long time. We don't think this will change in the near future.