The war of the stripes between Adidas and Thom Browne closed earlier than expected. After debating the closing arguments laid out in court by Adidas and Thom Browne's attorneys, a jury of eight, issued yesterday afternoon their verdict. According to the jury, the designer did not infringe on any of Adidas' trademarks and was therefore not liable for damages or profits made selling products with four stripes. The case was heard by Judge Jed Rakoff in Manhattan's Southern District Court.
As you may remember from a previous post, in 2021 the German sportswear giant filed suit in a New York court against the American designer. The brand claimed that Browne's "Four Bar Design", mainly employed around calves, thighs, and upper arms on his garments, was a trademark infringement and a dilution of Adidas' three-stripe parallel mark, a staple of the brand since the 1940s. As a consequence, Adidas sought injunctive relief and damages ($867,225 - the amount that it says the company would have received in licensing fees from Thom Browne Inc., if they had collaborated - plus over $7 million in profits, the amount allegedly made by the American fashion brand selling apparel and footwear with stripes) allegedly stating that Browne was generating confusion in consumers.
The case wasn't in favour of Adidas when it started as the company had come to a sort of agreement a while back. Over 10 years ago it came to the attention of the brand that Browne was using a red, white and blue three-striped trademark, and Adidas decided to approach the designer's then chief executive officer and suggested to add a fourth stripe to avoid confusion with Adidas' products. The fourth stripe was agreed in 2007 and first appeared in 2008.
Since then, Adidas did not object the use of the four stripes in Browne's garments until 2021 when it probably considered Browne's successes, a new sportswear line and athleisure designs, plus a partnership in 2018 with the formerly Adidas-sponsored F.C. Barcelona soccer team and its star athlete at the time, Lionel Messi, and with the Cleveland Cavaliers of the NBA during their Playoffs in the same year (Adidas also had a relationship with them).
Browne appeared in court for the hearing of the case on Monday, highlighting that his inspiration for the stripes came from varsity and collegiate sports uniforms.
The designer also highlighted that he always had a passion for sports and that, when he launched his brand in 2003, he decided to blend tailored clothing with sportswear. The words "tailored sportswear" were indeed often repeated in his testimony.
Earlier on in January when the trial started, survey researcher and consultant Hal Poret, hired by Adidas, presented the results of a survey he was commissioned: 2,400 consumers were shown images of Thom Browne's striped products (from which the rectangular label marking these designs, something that may have offered consumers a clue about the origin of the designs, had been removed) and 26.9 percent thought they were made by Adidas. The survey participants didn't actually see the actual products and were therefore unable to establish their quality by touching them.
On Thursday Thom Browne's attorney, Robert T. Maldonado of Wolf, Greenfield & Sacks PC, reiterated the key points of the defence, highlighting again that his client's four parallel horizontal bars on the sleeves or pant legs as well as its grosgrain tag on the garments, are different from Adidas' three vertical stripes. He also added that "Adidas does not own stripes" and presented Adidas' internal branding guidelines that state the brand's designers can only tilt the stripes 20 degrees and use them vertically, but not horizontally (the stripes were used horizontally on socks in an Adidas / Gucci capsule collection). Besides, using white-on-white stripes, such as those used by Thom Browne on his sneakers, also violates the internal rules of the company.
The difference in prices was also important to define the case: the price of an item would easily reveal if it was manufactured by Adidas or by Thom Browne. It is indeed highly unlikely that shorts selling for $600 are produced by Adidas.
So what does this case teach us? Well, that stripes can be a problematic pattern of contention (stripes led indeed to some complex trademark infringement cases in the last few years between different brands such as Off-White, Paige and Helly Hansen), but also that consumers are smarter than brands think.
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