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Talking Business: Adidas is right to be vigilant about protecting its brand

News that Adidas is taking legal action against US designer Marc Jacobs for infringing its well-known three-stripe trademark on pieces in his Marc by Marc Jacobs autumn 14 range highlights a relatively new intellectual property threat affecting the sportswear market, as more luxury clothing designers seek to develop their own casual and sportswear collections.

Fiona McBride is a partner and trade mark attorney at Withers and Rogers

Fiona McBride is a partner and trade mark attorney at Withers and Rogers

Adidas’s three-stripe design is instantly recognisable to consumers and has become synonymous with its brand. This has encouraged the company to take a proactive approach to enforcing its exclusive right to use the design globally.

It has been successful in several infringement cases over the past decade, cracking down on those that attempt to mimic its designs. For example, the European Court of Justice (ECJ) ruled that H&M had directly infringed Adidas’s trademark in 2008. In this and similar cases, the defendants claimed that because the garments featured a different number of stripes, rather than the three commonly associated with Adidas, they were sufficiently different to avoid infringement.

However, in most instances, Adidas successfully argued that the number of stripes was irrelevant and any number could cause ‘imperfect recollection’ – whereby consumers incorrectly associate a design with a particular brand because of its association over an extended period of time. 

The spotlight is now firmly on luxury clothing designers. There have been a number of alliances between sportswear brands and high-end designers – one of the latest is between Stella McCartney and Adidas itself. While these business partnerships have been successful, we are seeing the very distinct areas of luxury goods and sportswear being brought closer together: this is increasing the risk of potential infringement.

There are steps fashion designers can take to avoid infringing an existing trademark such as searching domestic and international databases of trademarks for any potential conflict. Specialist advice may also be needed to provide assurance that a design does not have an association with an existing brand – otherwise firms could find themselves being forced to withdraw designs from sale and compensate another brand owner for any loss of profits.

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