Adidas and luxury fashion brand Thom Browne are engaged in a jury trial over Thom Browne’s use of a four-stripe design on apparel and footwear. Adidas is seeking nearly $8 million in damages alleging Thom Browne’s use of its four-stripe design infringes and dilutes adidas’ famous three-stripe mark. Adidas claims that consumers seeing apparel and footwear featuring Thom Browne’s four-stripe design are likely to be confused and believe that the apparel and footwear are affiliated or endorsed in some way by adidas.
Thom Browne contends there is no way consumers will be confused between its four-stripe design and adidas’ three-stripe mark given Thom Browne’s is a luxury fashion brand and adidas is a sportswear brand. Thom Browne further states that no one will go to purchase a pair of Thom Browne sweatpants for $800 and think it’s adidas.
Adidas first raised issues with Thom Browne’s use of stripe designs in 2007, when Thom Browne was using a nearly identical three-stripe design on its products. Adidas then objected to Thom Browne’s use of its current four-stripe design in 2018, leading to this lawsuit.
In filings and in the jury trial, adidas has detailed continuous use of its registered three-stripe mark since the 1950’s and spends nearly $300 million on advertising on its three-stripe products. In adidas’ initial complaint, adidas claims that because Thom Browne has featured both four and three stripe designs on sportswear and footwear, this use will lead to initial interest confusion and post-sale confusion, rather than confusion at the point of the sale. With the huge resale market for sneakers, streetwear, and luxury fashion, it is no surprise adidas is highlighting these points.
Adidas additionally cites to a 2018 GQ article that referred to Thom Browne as “the other Three Stipes’ company” when Thom Browne began a push into athletic leisure clothing. What’s more, Thom Browne has also partnered with Lebron James and the famous soccer/futbol club FC Barcelona, which at the time, had famous adidas collaborator Lionel Messi playing for the team. While Thom Browne has contended there has been no actual confusion, when it comes to a finding of a likelihood of confusion this is not a dispositive point. In fact, adidas introduced survey evidence showing nearly 30 percent of consumers surveyed believe Thom Browne’s products were sourced from adidas. Adidas points to the above to evidence to show that Thom Browne’s move into the activewear industry, a sharp shift from the luxury fashion lane it traditionally stayed in, is likely to cause confusion.
Thom Browne is arguing that the relevant consumers of Thom Browne, and luxury fashion in general, are not “going to purchase a Thom Browne $800 pair of sweatpants and think it’s Adidas[.]” While adidas relies on their three-stripe mark as a source identifier, Thom Browne argues that its four and five stripe design alert consumers that the clothing is Thom Browne. Thom Browne is also asserting that adidas knew about Thom Browne’s use of its stripe designs for years and did not take action. As such, Thom Browne claims the legal doctrine of laches applies because adidas did not take action for so long despite knowing of Thom Browne’s use. However, as discussed above adidas has made clear their issue is with Thom Browne’s recent 2018 shift into sportwear. Thom Browne also plans to attack the breadth of adidas’ famous three-stripe mark, which Thom Browne contends is not as strong as adidas has asserted.
Similar past cases seems to be on adidas’ side as plaintiff’s with a famous mark generally seeing success in enforcing their marks against similar junior users. In fact, adidas has successfully enforced their famous three-stripe mark against other infringers in the past including against Payless Shoes who sold shoes bearing two and four stripe designs.
If this case does not settle before the jury reaches a verdict, I suspect that adidas will ultimately win.
Written by Ryan Masters, Founding Attorney, Masters IP