Adidas “Does Not Own Stripes”

by Caroline Hardig, Associate Member, University of Cincinnati Law Review Vol. 91

I. Introduction

A trademark can be a powerful tool that allows consumers to identify a company’s product. According to the United States Patent and Trademark Office, “a trademark can be any word, phrase, symbol, design, or a combination of these things that identifies your goods or services. It’s how customers recognize you in the marketplace and distinguish you from your competitors.”1What is a Trademark?, U.S. Pat. and Trademark Off., https://www.uspto.gov/trademarks/basics/what-trademark (last visited Feb. 3, 2023). Companies work hard to protect their brand and often enforce their trademark through trademark infringement lawsuits.2Trademark Infringement Penalties, upcounsel, https://www.upcounsel.com/trademark-infringement-penalties (last visited Feb. 8, 2023). “Trademark infringement is the unauthorized use of a trademark or service on or in connection with goods and/or services in a manner that is likely to cause confusion, deception, or mistake about the source of the goods and/or services.”3About Trademark Infringement, U.S. Pat. and Trademark Off., https://www.uspto.gov/page/about-trademark-infringement (last visited Feb. 8, 2023). To protect its brand, Adidas initiated a trademark infringement lawsuit against Thom Browne over its three-stripe design.4Alex Binley, Adidas Loses Stripes Row Trademark Battle with Luxury Designer Thom Browne, BBC (Jan. 13, 2023), https://www.bbc.com/news/world-us-canada-64261616. A federal jury sided with Thom Browne, deciding there had been no trademark infringement.5Id.

This article details Adidas’s trademark infringement lawsuit attempting to protect its three-stripe design. Part II provides background on the lawsuit. Part III discusses why consumers would not be confused between Adidas and Thom Browne. To conclude, Part IV discusses how this case could be a catalyst for other brands who want to use a striped design.

II. Background

In 2021, Adidas initiated a lawsuit against Thom Browne, a luxury clothing brand, alleging that the brand infringed on its trademark, specifically, the long-standing three-stripe design.6Isaiah Portiz, Adidas Loses ‘3 Stripe’ Trademark Trial Against Thom Browne, Bloomberg L. (Jan. 12, 2023), https://news.bloomberglaw.com/ip-law/adidas-loses-3-stripe-trademark-trial-against-thom-browne. On January 12, 2023, a jury returned a verdict in the U.S. District Court for the Southern District of New York in favor of Thom Browne.7Id. Adidas sought nearly $8 million for the alleged infringement.8Id. While Thom Browne is a luxury brand, Adidas claimed that its trademark was infringed upon because Thom Browne was expanding into the sportswear market, which confused consumers.9Id.  

Thom Browne was founded in 2001 in New York City.10Lei Takanashi, How Thom Browne Went from Designing for Club Monaco to Creating His Own Fashion Empire, Complex (Oct. 20, 2021), https://www.complex.com/style/thom-browne-fashion-designer-guide. The first store opened in 2003 and specialized in grey suits.11Id. Now, the brand is a global company with over fifty stores.12Thom Browne, https://www.thombrowne.com/us/ (last visited Feb. 3, 2023). While the grey suit is still an important element of the brand, the brand now sells men’s, women’s, and children’s clothing as well as eyewear and fragrances.13Id. Thom Brown has dressed celebrities including Gigi Hadid, Lebron James, and Michelle Obama.14Danni Santana, Meet Thom Browne, the Stripe-Obsessed Designer Who Took on Adidas and Won, Bus. Insider (Jan. 26, 2023), https://www.businessinsider.com/thom-browne-designer-who-took-on-adidas-and-won-2023-1.

The battle between Thom Browne and Adidas began long before 2021. In 2006, Adidas approached Thom Browne about his design, which at the time was a three-stripe logo.15Olivia Hampton, Thom Browne Win Against Adidas is also a Win for Independent Designers, He Says, NPR (Jan. 30, 2023), https://www.npr.org/2023/01/25/1151270484/fashion-designer-thom-browne-scores-a-major-victory-against-adidas. Browne agreed to add a fourth stripe to his logo, which is what the company uses to this day.16Id. However, once Thom Browne began dressing the Cleveland Cavaliers, FC Barcelona and created more activewear, Adidas once again approached Thom Browne.17Santana, supra note 14.

Adidas’s suit with Thom Browne is just one of many lawsuits Adidas has initiated in an effort to protect their three-stripe design.18From Forever 21 to FC Barcelona, a Look at Adidas’ History of 3-Stripe Legal Battles, The Fashion L. (Jan. 10, 2023), https://www.thefashionlaw.com/from-forever-21-to-fc-barcelona-a-look-at-adidas-history-of-3-stripe-legal-fights-2/. Adidas first began using its three-stripe design in 1952 and has actively enforced that design ever since.19Portiz, supra note 6. Currently, Adidas “owns 24 federal trademark registrations for different variations of the stripes, covering all kinds of apparel.”20Id. Because of those twenty-four registrations, Adidas has initiated many lawsuits to enforce those trademarks. In 2001, the company sued Payless Shoesource for selling a shoe that bore the three-stripe design.21From Forever 21 to FC Barcelona, a Look at Adidas’ History of 3-Stripe Legal Battles, supra note 18. Since 2001, Adidas has sued various companies such as Ralph Lauren, Abercrombie, Target, Marc Jacobs, Sears, Forever 21, Sketchers, APL, Tesla, and J. Crew.22Id.

While Thom Browne uses its four-stripe design on many types of clothing, including sportswear, the federal New York jury found Thom Browne did not infringe on Adidas’s trademark.23Portiz, supra note 6. Thom Browne argued that it has no intention in becoming a sportswear company and that Adidas “does not own stripes.”24Id. However, Adidas provided evidence that nearly “30% of people surveyed believed that disputed Thom Browne products were associated with Adidas.”25Id. Adidas further argued that Thom Browne’s sportswear “was ‘basically the same’ and was likely to confuse people who saw the products on social media, on store racks, or while being worn by others.”26Id. Ultimately, these arguments did not impress the jury, which held in favor of Thom Brown.27Id.

III. Discussion

For Adidas to prevail on a trademark infringement claim, they had to prove to the jury that Thom Browne’s design caused confusion with consumers which damaged Adidas.28Scott Alan Burroughs, A Fashionable Fracas: Adidas Wages War Over Use of 3-Stripe Trademark, Above The L. (Jan. 11, 2023, 3:15 PM), https://abovethelaw.com/2023/01/a-fashionable-fracas-adidas-wages-war-over-use-of-3-stripe-trademark/. The jury came to the correct conclusion in holding that Thom Browne’s use of a striped design did not infringe on Adidas’s trademark. It is unlikely that consumers would be confused by the two designs due to the different marketplaces the brands are in. For example, a three-pack of socks from Adidas costs around $16, while a single pair from Thom Browne retails for $120.29Avery Hartmans, Adidas is Suing Luxury Designer Thom Browne Over His Use of Stripes – and Browne Showed Up to Court in a Shorts Suit and One Striped Sock, Bus. Insider (Jan. 4, 2023, 2:38 PM), https://www.businessinsider.com/adidas-thom-browne-battle-over-stripes-kicks-off-in-court-2023-1.

Therefore, even if Thom Browne chose to expand its activewear line, because Thom Browne is a luxury brand operating in a different market than Adidas, the likelihood of confusion would be low. Further, most consumers would not encounter Thom Browne as often as Adidas. To view a Thom Browne piece, consumers would have to go to one of their fifty global stores or a high-end department store such as Nordstrom or Saks Fifth Avenue.

Adidas will likely continue to aggressively protect its three-stripe design, but how far can they go? Since 2008, Adidas has filed ninety lawsuits and the brand will continue to keep other brands from using a striped logo.30Isaiah Portiz, Adidas’ Recent Trial Loss Unlikely to Deter Brand Enforcement, Bloomberg L. (Jan. 23, 2023, 4:57 AM), https://news.bloomberglaw.com/ip-law/adidas-recent-trial-loss-unlikely-to-deter-brand-enforcement. While the jury held that Thom Browne’s four striped design did not infringe on Adidas, a different jury could hold differently. It is unknown whether a court would find a trademark infringement for a three-stripe design that looked different than Adidas’s. Like Thom Browne’s lawyer said in his closing argument, Adidas “does not own stripes.”31Id.

IV. Conclusion

Trademarks are a powerful tool for brands to protect their image and Adidas has been a brand to vigorously defend its famous three-stripe design.32Portiz, supra note 6. Adidas is a large powerful company who has the time and resources to defend their image.33Portiz, supra note 30. However, Thom Browne’s win over Adidas is a powerful statement that a smaller company can use stripes without infringing on Adidas’s trademark.34Id. This win could be a catalyst for other companies who want to use a striped design without fear of infringing on Adidas’s trademark.

Cover Photo by Jake Bellucci on Flickr and licensed under CC BY-NC-ND 2.0.

Author

  • Prior to law school, Caroline Hardig attended the University of Kentucky where she received a degree in Psychology and a minor in Spanish. Caroline is unsure of exactly what area of law she wants to practice, so she is excited to explore various topics in the law as an Associate Member.

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