The General Court of EU today confirmed the invalidity of the adidas EU trademark. The court stated that adidas has failed to prove that their mark, which consists of three parallel stripes applied in any direction, has acquired, throughout the territory of the EU, distinctive character, following the use which had been made of it.
However, In 2014, the European Union Intellectual Property Office (EUIPO) ruled in favour of adidas, granting an EU trademark for clothing, footwear and headgear.
In its application for registration, adidas described the mark as consisting of three parallel equidistant stripes of identical width, applied on the product in any direction. In 2016, following an application for declaration of invalidity filed by the Belgian undertaking Shoe Branding Europe BVBA, EUIPO annulled the registration of that mark on the ground that it was
devoid of any distinctive character, both inherent and acquired through use.
According to EUIPO, the mark should not have been registered. In particular, adidas had failed to establish that the mark had acquired distinctive character through use throughout the EU.
In today’s judgment, the General Court upholds the annulment decision, dismissing the action brought by adidas against the EUIPO decision.
The General Court notes, first of all, that the mark is not a pattern mark composed of a series of regularly repetitive elements, but an ordinary figurative mark. The General Court also finds that the forms of use which fail to respect the other essential characteristics of the mark, such as its colour scheme (black stripes against white background), cannot be taken into account.
Finally, the General Court notes that EUIPO did not commit an error of assessment in finding that adidas had not proved that the mark at issue had been used throughout the territory of the European Union and that it had acquired, in the whole of that territory, distinctive character following the use which had been made of it.
From the evidence produced by adidas, the only evidence which is, to some extent, relevant relates to only five Member States and cannot, in the
present case, be extrapolated to the entire territory of the EU.