Ban struck out - battle between adidas and H&M

H&M is again allowed to use two stripes on its clothing without it constituting an infringement of adidas' three-striped trademark. After years of battle, the Court of Appeal of The Hague decided this on 28 January 2020, surprisingly differing from the decisions of the Court of The Hague in the first instance and from the Court of Appeal of Arnhem in preliminary injunction proceedings regarding exactly the same garments, the "Work Out clothing":

The case started in 2017 with preliminary injuction proceedings, then went all the way to the Supreme Court, to the Court of Justice, again to the Supreme Court and then back to the Court of Appeal of Arnhem, after which adidas started proceedings on the merits before the District Court of The Hague. The District Court of The Hague in 2017 (proceedings on the merits) and the Court of Appeal of Arnhem in 2015 (appeal in preliminary injunction proceedings) ruled that H&M's two stripes of clothing infringed the well-known three-striped mark of adidas: there was a likelihood of confusion.

The Court of Appeal of The Hague ruled exactly the opposite in January 2020 (appeal of the proceedings on the merits): H&M's two stripe clothing does not infringe the well-known three-striped trademark of adidas. The distance between the stripes on H&M Work Out garments is relevantly smaller than the width of the stripes. As a result, there is only a 'very low degree of similarity' between the trademarks. And that is why, according to the court, there is no risk of confusion.

How is it that both courts of appeal come to a different conclusion? Apparently, the Court of Appeal of The Hague was convinced by the new market surveys submitted in the last round. Earlier studies of adidas showed convincing figures of confusion: people saw H&M's clothing and thought it came from adidas. H&M wanted to criticize the market leadership effect of the adidas studies with its new studies. This means that because adidas is one of the market leaders, people will in any case answer adidas if they are asked to say something about the origin of sportswear. The court followed H&M, and thus struck out the stripe ban.

Does this mean the end? For adidas, there is another possibility to take this case to the Supreme Court. Maybe, to be continued.

Moïra Truijens