A recent European Court of Justice (ECJ) ruling in a dispute over the Adidas three-stripe trademark has held that it may be possible for Adidas to prevent other clothing retailers from using two stripes on clothing.
The ruling came after a long-running dispute in which Adidas has been seeking to stop a number of retailers in the Netherlands from selling sports goods bearing two parallel stripes. Adidas owns trademarks for three parallel stripes. A number of retailers including Marca Mode, C&A Nederland and H&M Hennes & Mauritz Netherlands claimed they should be entitled to use two stripes on their goods as decoration.
In its judgment earlier this month, the ECJ said in principle that Adidas’ three-stripe trademark could prevent others from using two stripes on garments if the designs were so similar to those registered by Adidas that there was a likelihood of confusion by members of the public.
The decision strengthens the protection of famous trademarks in Europe and will greatly benefit Adidas in protecting its trademark.
Importantly, clothing companies around Europe using stripes as designs on their merchandise could now face legal action from Adidas.
However, the decision should be viewed in context. Adidas will be required to establish that in the minds of the public there is a link between the three-stripe mark and a two-stripe mark and that such a link causes confusion. In addition, European trademark law gives special rights to so-called famous trademarks, so it is unlikely that the courts would give such protection to trademarks that are not considered famous.
Clive Thorne is a partner at law firm Arnold & Porter