A German court recently dismissed adidas’ trademark infringement claims in the case that it waged against Thom Browne, marking the latest win for the American fashion brand, which has been facing off against the German sportswear giant in multiple legal clashes across the globe. In a decision on September 6, the LG Nuremberg-Fürth Regional Court held that the four-stripe design used by Thom Browne does not violate adidas’ trademark rights. The ruling puts a near-end to one of several adidas-initiated legal battles that center on whether Thom Browne’s use of four horizontal stripes on various activewear garments could confuse consumers or dilute the distinctiveness of adidas’ well-known trademark.
In the stripes-centric case at hand, which it filed against Thom Browne in Germany in 2021, adidas has sought injunctive relief and monetary damages, as well as a order from the court that Thom Browne provide it with information about the distribution and sales of the allegedly infringing products.
Another Win for Thom Browne
Siding with Thom Browne in its recently-issued decision, the LG Nuremberg-Fürth Regional Court found adidas’ arguments unconvincing and determined that the four-stripe design used by Thom Browne is sufficiently distinct from adidas’ mark, and that the fashion brand’s use of the multi-stripe design is decorative rather than an indicator of source of the products at play. At the heart of the court’s decision are a few key determinations …
No Likelihood of Confusion: The court’s ruling hinges on the finding that Thom Browne’s four-stripe design does not create a likelihood of confusion among consumers. While adidas argued that the visual similarities between the two designs – parallel stripes, similar positioning on the sleeves, and contrasting colors – could mislead buyers into associating Thom Browne’s products with its own, the court emphasized the differences between the two designs.
For instance, the court held that Thom Browne’s stripes were wider, spaced further apart and covered a larger area on the sleeve than adidas’ three stripes. This difference created a distinct overall impression for the marks, one that the court concluded would be immediately apparent to consumers in the luxury consumer market that Thom Browne targets. Unlike adidas, which sells widely accessible sportswear, Thom Browne’s garments are positioned in the luxury fashion segment with significantly higher price points, making confusion less likely among more attentive and brand-conscious consumers, the court held.
One of the pivotal factors in the court’s decision was the level of attentiveness in Thom Browne’s target market. Buyers of high-end fashion products tend to be more discerning, carefully considering branding and design elements, according to the court, which ruled that these consumers are highly unlikely to mistake Thom Browne’s four-stripe design for adidas’ three stripes, even if the designs share superficial similarities in structure and color contrast.
The Decorative Use of Stripes: A major argument that Thom Browne waged in its defense was that its four-stripe design is primarily decorative, serving an aesthetic purpose rather than a trademark one. The court agreed, finding that the stripes did not function as an indication of source but rather as part of the garments’ overall design. The court highlighted that decorative elements, such as stripes, rings, and other geometric shapes, are commonly used in the fashion industry, particularly in luxury clothing, where such patterns are often employed for visual appeal rather than as a brand identifier.
This was a critical point in distinguishing Thom Browne’s use of stripes from adidas’ three-stripe trademark, which has been protected, including as a position mark, precisely because of its brand-identifying function.
Clear Branding & Consumer Awareness: Another key element that undermined adidas’ case in the eyes of the court is the clear branding used by Thom Browne. The court pointed to the prominent display of the “Thom Browne” brand name, both on its garments and on the company’s website, as evidence that consumers would not mistake the source of the products. The Navy Waffle Raglan Sleeve 4 Bar Hoodie, the specific product at the center of the dispute, features Thom Browne’s name in multiple locations, including a sewn-in label inside the garment and throughout the product’s online advertising.
The court found that the clear presence of Thom Browne’s branding makes it unlikely that any consumer would associate the garment with adidas.
Additionally, the court noted that Thom Browne’s website prominently displays the brand name in the URL, product descriptions, and visual content. This further supports the notion that Thom Browne’s customers, who tend to be more brand conscious, would not be misled into thinking that the four-stripe design indicated an association with adidas.
Why adidas’ Arguments Fell Short
Adidas argued that Thom Browne’s four-stripe design created a link with its three-stripe trademark in the minds of consumers, even if those consumers were not outright confused. Adidas claimed that this mental association could weaken the distinctiveness of its trademark, a concept known as trademark dilution. However, the court rejected this argument, finding that the visual differences between the two companies’ designs, combined with the clear branding of Thom Browne’s products, were sufficient to prevent any such association.
The court also dismissed adidas’ post-sale confusion argument, in furtherance of which adidas argued that after Thom Browne’s garments are purchased and worn in public, others might mistake them for adidas products. The court ruled that post-sale confusion is not relevant in this case, as the clear branding and labeling on Thom Browne’s products during the purchase process removed any reasonable risk of confusion. The court emphasized that trademark use is primarily assessed based on the point of sale, and Thom Browne’s distinct branding made it clear that the products were not connected to adidas.
Finally, the court underscored the fact that striped designs are widely used in the fashion industry for decorative purposes, and not all uses of stripes can be considered a trademark. Thom Browne’s four stripes, while similar in structure to adidas’ three, are sufficiently distinct in their presentation and use.
Adidas now has a month to appeal the decision before it becomes legally-binding, according to the court.
The decision is the latest win for Thom Browne and more broadly, the latest setback for adidas in its enduring quest to enforce its three-stripe mark. The ruling follows closely from a decision from the Court of Cassation in France, which handed adidas losses in its cases against French brands Sandro and Isabel Marant last month, illustrating the difficulty that the German sportswear giant is having in protecting its mark in a fashion landscape where such designs are more common. In fact, adidas has even had trouble with similar claims against Thom Browne in the U.S., where A New York federal court finalized a win for the high-end fashion brand in the closely-watched trademark battle waged against it by adidas over their domestic uses of their respective stripes.
The case is LG Nuremberg-Fürth, Final opinion v. 06.09.2024 – 4 HK O.
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