After 17 years of procedures: an end to the stripe-conflict
After a conflict of more than 17 years, adidas finally won at the Court of Appeal Arnhem-Leeuwarden. In the meantime, the case landed on the desks of many different courts (the Court of Justice of the EU, the Supreme Court). In this case the question arose whether the 3-striped pattern could be seen as a trade mark. The CJEU held that this was the case. It is interesting to note that this case once started as summary proceedings. The Court of Appeal held that even after 17 years, adidas’ claims were still “sufficiently urgent”, since H&M still denied the infringement .
The Court of Appeal agreed with adidas that the 3-striped pattern could be regarded as a “trade mark with reputation”. This was concluded on the scope of adidas’ sponsor activities, the sales data, marketing budget and the catalogues from the period 1971-2014 (from which the extensive and consistent use was demonstrated) and a number of market researches. Moreover, it also worked in adidas’ favour that it has a reputation of consistently acting against infringements.
The Court of Appeal held that the 3-striped trade mark is similar to the 2-striped pattern of the H&M. The latter also run parallel and are of the same breadth, and have been applied in the same manner over the whole side of the clothing. Hence, in view of this similarity and the reputation of the 3-striped trade mark a likelihood of confusion is assumed. Although H&M only sold its clothes in its own shops, post sale confusion is still possible. Furthermore, the clothing of H&M harms the distinctive character and the reputation of the 3-striped trade mark. From market research it appears that a significant part of the public believes the 2-striped clothing originates from adidas. H&M could not convince the Court of Appeal of a due cause for its use of the stripes in exactly the same manner.
And thus there is an infringement. Not regarding the general use of a 2-striped pattern on all apparel, but at in any case on the sports clothing, shirts and trousers, which have 2-stripes in the same place and applied in the same manner. Although the case started 17 years ago and the actual legal fees could not be claimed at the time, adidas was awarded its entire legal fees for the part of the procedure after the referral from the Dutch Supreme Court.
Moïra Truijens