For it?s one, two, three stripes are out in adidas? ballgame

IHT’s Doreen Carvajal has been covering the legal war adidas is waging to protect its dominion over stripes. In the most recent turn of events, the European high court last week rejected an argument made by top international apparel manufacturers to use logos similar to that of the German giant (i.e., with two stripes instead of three). This two-stripe case began with a lawsuit brought by adidas against four big retailers—Marca Mode, C&A, H&M Hennes & Mauritz, and Vendex—for selling products that had two parallel stripes.
 
The Dutch Supreme Court asked Europe’s highest court to clarify a narrow legal question regarding the “right of availability” of stripes in connection with the “distinctiveness” of the adidas three-stripes trademark. Is in in the public interest to keep such marks and patterns free for others to use?

The courts ruled that even though stripes are a common pattern that everyone should have access to, that shouldn’t be a factor when considering whether a logo has infringed on adidas’ trademark. They’ll leave it to national courts to determine whether a competitor’s product is hitting too close to home.

This is in line with the opinion of the European court’s Advocate General, who in January wrote that there is no public interest in allowing others to use inherently non-distinctive marks (e.g. three stripes) which have acquired distinctiveness through one company’s aggressive exploitation. In other words, adidas has spent so much money marketing and defending its (originally not very original) three-stripes trademark that it has now become distinctive enough that the “right of availability” might not apply.

adidas, of course, was happy with the European high court’s decision. “We do not seek to prevent the use of decoration but the use of striped markings that confuse consumers, or cause them to make a link with our company and its famous trademark,” said Anne Putz, a spokeswoman for the company.

Meanwhile, this has left the rest of the clothing industry anxious. National rulings against stripes and other commonly-used patterns will hogtie designers and buyers who are trying to develop a company’s collection. Also, what’s to stop adidas from attacking the use of stripes for design of products not related to apparel?

And this decision is license for adidas to continue to intimidate designers, clothing producers, sporting groups, and retailers for using any stripes at all, or even stylistic variations on stripes. They’ve already claimed trademarks on several variations of its three-stripe emblem, including one with four stripes and another with curved stripes that look like claw marks. In a settlement that ended a legal dispute with the U.S.’s National Collegiate Athletic Association in 1998, the company extended its monopoly—at least on NCAA uniforms—to the use of boomerang and chevron shapes in addition to three stripes.

I’m curious to know what this will do to tennis brands that use vertical stripes in their emblems. For instance, Babolat skirts have short vertical stripes on the back hem.

Read up: There’s a history of stripes called The Devil’s Cloth.

Fun fact: adidas has used the three-stripe trademark since 1948.