Three Stripes and You’re Out: Adidas three-stripes Loses in 25-Year Dispute Against H&M

German sports company Adidas faces disappointing result in long-running intellectual property dispute against Swedish fashion house H&M as Hague Court of Appeal rules that H&M did not infringe upon Adidas’ three-stripe trademark.

Two’s a Crowd

It began in 1997 when Adidas took note of H&M’s own brand sportswear which featured two vertical, parallel stripes on the sides of its t-shirts, shorts and trousers. Spurred by the alarm that H&M’s use of vertical, parallel stripes would confuse consumers about the origins of the non-adidas clothing, Adidas took immediate measures to protect their famous three stripes branding. One stripe short of appearing similar to Adidas’ own three parallel stripes, H&M was accused of infringing upon Adidas’ exclusive rights to the trademarked three stripes pattern. Thus, the 25-year long legal battle was born.

Generic Patterns, Not Trademarks

H&M’s defence claims the two-stripe design is quite simply, a decorative design part of the fabric. On these grounds H&M argues that the two-stripes on its own brand sportswear were meant to be ornamental, not to suggest the origins of the clothing and in turn, not to indicate a specific company unlike logos and brand names. Consequently, the Court of Justice of the European Union (CJEU) stepped into the legal battle between the two giants. The CJEU was to determine if general patterns, in this instance parallel stripes, are sufficient to serve as a trademark given its non-distinctive or descriptive qualities. The problem for the CJEU remains in the fact that three-stripes has featured consistently in Adidas’ products and therefore, the pattern has not only become a part of Adidas’ brand identity, but also served as brand recognition for consumers to identify Adidas’ products.

The Consumer is Always Right

A market survey was conducted and results fall in favour of H&M as the survey shows only 10% of consumers would potentially confuse the H&M sportswear with Adidas’ own. Despite the relationship between the three-stripes pattern and Adidas’ brand recognition, evidence points towards the likehood of little-to-low consumer confusion. Therefore, the Hague Court of Appeal concluded that the use and function of parallel stripes used by H&M is distinct from Adidas’ use and purpose of its three-stripes trademark. Adidas is to pay H&M €80,745 in compensation but this is far from the end as Adidas simultaneously appealed against the legal costs claimed by H&M.

Losing the legal battle to H&M is not Adidas’ first as the German sports company has been entangled in various disputes with multiple companies over its three-stripes trademark. In 2003, Adidas lost yet another intellectual property dispute against the Dutch company Fitnessworld, who was utilising a two-stripe design.

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