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Are the stripes on sports shoes reserved only for Adidas?

Adidas may well be the most known and recognizable brand for sports shoes and clothes in the world. The famous three stripes by Adidas are probably well known to everyone. However, choosing banal and popular pattern as the mark for your products, you will probably face similar ideas by competitors. Adidas has been challenging them since 2009 (at least in this particular case), and the company proved to be quite successful.

Can you have a monopoly on parallel stripes?

By order of 17 February 2016 (C-396/15 P), the Court of Justice of the European Union upheld the earlier judgment of the General Court which had prevented the registration of a trademark in the form of two parallel sloping stripes on the side of a sports shoe.

Does the appearance of such a shoe bring any particular brand to mind?

The General Court found that such a pattern and position of the stripes on a shoe resembles the Adidas mark (see below) and may mislead the consumers as to the manufacturer of the shoes (T-145/14). In that respect, the Court found that OHIM’s decision dismissing the Adidas opposition to the registration of such a trademark was invalid.

What were the arguments for the registration?

The dispute started in 2009, as a result of an attempt by a Belgian company named Show Branding Europe BVBA to register a trademark – two parallel sloping stripes on the side of a sports shoe. In 2010, Adidas AG filed an opposition. However, OHIM dismissed it.

The Office took the position that the only common feature for both trademarks was the parallel stripes of the color contrasting with the base color of the shoe, placed on its side. It also indicated that the stripes on sports shoes were quite a banal pattern, hence the exact position of the stripes, their number and angle must, in particular, be taken into consideration when assessing the similarity of both trademarks. At the same time, the Office emphasized that consumers were used to the fact that sports shoes tend to be decorated with different geometrical patterns, which implies that they are sensitive to the differences between such patterns. Therefore, the fact that the trademarks vary in terms of the number of stripes and their position on the shoe means that they are not similar.

The Court’s position was different though…

The Court took a totally different stance. First, the Court focused on such features of the trademarks as, for example, the same width of the stripes, the fact they are straight and equidistant. The Court believed that such features additionally influenced the trademarks’ similarity.

The Court also assessed the group of purchasers of the sports shoes in a different way than OHIM had. The Court found that shoes were the products of everyday use and, when buying them, consumers maintain an average level of attention and do not focus on details (such as the features distinguishing both trademarks). Further, the Court emphasized that the trademark which belongs to Adidas enjoys a high reputation in the sports shoes and clothes industry, and the more the trademark is recognizable, the more misleading this may be for the consumers. As a consequence, the Court stated the OHIM’s decision rejecting Adidas objection was invalid. The Court of Justice did not find any shortcomings in the General Court’s order in the case and upheld the order.

What next?

The order in the case is questionable – can consumers really be misled by the similarity between the trademarks? You can assess that on your own… However, if you wish to register a trademark concerning sports shoes or clothes which consists of parallel stripes, we encourage you to consider this carefully, or at least to prepare for a fierce court battle.

#adidas #CJEU #ohim #trademarks

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