Sotheby's auction of items from Freddie Mercury's estate featured quite a few striped costumes and catsuits worn on stage in the late '70s, and several pairs of Adidas high-top sneakers from the 1980s.
The latter became the singer's favorite stage footwear as they allowed him to move freely on stage and yesterday, the most famous pair of Adidas high-top trainers that belonged to the rockstar soared to £127,000 at an auction at Sotheby's in London.
Stripes and Adidas are back in the news not because of Freddie Mercury's memorabilia, but because the Adidas vs Thom Browne saga may continue as the sportswear company appealed to the verdict of the jury issued earlier on this year.
In 2021, Adidas filed a lawsuit against American designer Thom Browne in a New York court, alleging trademark infringement and dilution of Adidas' three-stripe mark. Adidas sought injunctive relief and damages totaling $867,225 (licensing fees) plus over $7 million in alleged profits from the sale of striped apparel and footwear, claiming that Browne's "Four Bar Design" created confusion among consumers.
The case did not favor Adidas, as the two parties had reached an agreement over a decade ago. Adidas had indeed proposed adding a fourth stripe to Browne's three-striped trademark in 2007 to avoid confusion with their products, a suggestion that Browne accepted in 2008. Adidas did not object to the use of four stripes in Browne's garments until 2021, possibly due to Browne's growing success, expansion into sportswear and athleisure, and partnerships with sports teams like F.C. Barcelona and the Cleveland Cavaliers, which Adidas had ties to.
In the trial that began in January 2023 at Manhattan's Southern District Court, researcher Hal Poret, hired by Adidas, presented survey results showing that 26.9% of 2,400 consumers believed Thom Browne's striped products were made by Adidas when shown images with the rectangular label removed. However, the participants didn't physically touch the products. Thom Browne's defense reiterated that his four parallel horizontal bars and grosgrain tag were distinct from Adidas' three vertical stripes.
They argued that "Adidas does not own stripes" and highlighted 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).
The price difference between items was also noted, highlighting how consumers wouldn't assume that a $600 pair of shorts were produced by Adidas, so confusion between the two companies' designs was unlikely because they operated in different markets (luxury and athletic wear), catered to distinct customer bases, and offered products at vastly different price points. Ultimately, after an eight-day trial, the jury found that Thom Browne did not infringe on Adidas' trademarks and was not liable for damages or profits.
However, Adidas has since appealed the verdict, contending that Judge Jed Rakoff had provided the jury with incorrect instructions regarding potential confusion during the purchasing process. According to Adidas, confusion "need not occur at point-of-sale but can also occur either during the 'initial interest' or 'post-sale' phase" (regarding this point, Adidas argues that without clear identification as Thom Browne on social media or when worn in public, there could be a risk of confusion; yet it is frankly hard to understand where is the harm here…). To support the statement, the brand referenced the Polaroid Factors (Polaroid Corp. v. Polarad Electronics Corp., 287 F.2d 492, 495, 2d Cir. 1961). These factors encompass the strength of the plaintiff's trademark, the similarity between the two marks, the proximity and competitiveness of the products, the potential for the senior user to develop a competing product in the market of the alleged infringer's product; evidence of actual consumer confusion, bad faith adoption of the mark by the defendant, the quality of the defendant's products, and the sophistication of consumers in the relevant market.
The company also claimed that Judge Rakoff made an unfair decision in January to exclude testimony from one of its experts while permitting an expert from Thom Browne to testify about the use of stripes on apparel. As a consequence, Adidas called for the judgment to be vacated and a new trial to be ordered due to the district court's "prejudicial errors."
In response, Thom Browne's attorneys argued that the jury instructions were not misleading and that their expert witness did not harm Adidas' case. They requested the appellate court to reject Adidas' attempt to revisit the issue, stating that Adidas' arguments contained inaccuracies and missing facts. According to Thom Browne's rebuttal, the jury was well aware that it would not be considering point-of-sale confusion, but only initial interest and post-sale confusion, as Adidas wanted and argued.
It is obvious that Adidas is trying to subvert the jury’s decision in this case, hoping to obtain the same results they got in 2008 for the Adidas America, Inc. v. Payless ShoeSource, Inc. That case started in November 2001 when Adidas filed its original complaint against Payless ShoeSource for trademark infringement over the use of a similar striped logo on athletic shoes.
Adidas argued that Payless' cheaper shoes could harm its brand and dilute its logo's value. Payless was found guilty of willful federal trademark and trade dress infringement, trademark and trade dress dilution, and state-law unfair and deceptive trade practices as a result of its sale of footwear bearing confusingly similar imitations of Adidas' famous Three-Stripe Mark and Superstar Trade Dress (between 2001 and the verdict in 2008, so throughout the pendency of the litigation, Payless continued to introduce new, similar footwear models that Adidas would accuse of infringement). In that case the jury sided with Adidas (267 Payless lots were accused of infringement, of which the jury found all but one to infringe and dilute Adidas' trademark and trade dress interests), awarding them $305 million, which at the time was considered one of the largest verdicts in a trademark case.
There is one item that may have saved Browne a lot of hassle in this case and that probably the designer doesn't want to reference because that would put in jeopardy the original inspirations for his trademark motif.
Browne has always maintained that his red, white and blue three-striped trademark was inspired by varsity and collegiate sports uniforms, but in the archives of the Costume Institute at the Metropolitan Museum there's a pair of 1967 Lycra men's briefs designed by Ruben Torres with a red, white and blue striped edge that may have proved Adidas how this motif was already popular then (and at the time it didn't cause any copyright infringement case). Yet this very item may have put into question the genuine originality of Browne's own red, white and blue striped designs.
While an appeal is not surprising in such cases, appellate courts are generally reluctant to overturn a jury verdict, so it will be interesting to see what will happen in this case. The next steps involve each side submitting additional briefs, followed by oral arguments before the appellate court decides, a process that may take a significant amount of time.
The outcome of this case case was intriguing because it implied that possessing a trademark registration does not guarantee an absolute and unchallengeable monopoly for brands. These endless legal sagas are becoming so fascinating that, as discussed in previous posts, they could easily serve as a plotline for a legal drama or a dramedy series centered around the most intriguing fashion law cases.
You must admit though that Adidas' unwavering determination and commitment in protecting its stripes is verging towards the obsessive: in March, Adidas also attempted to challenge the Black Lives Matter Global Network Foundation's trademark application featuring a yellow three-stripe design, by arguing that it might create confusion with their own iconic three-stripe logo, potentially jeopardizing their brand recognition.
One can only hope that, when the world faces its final moments, there won't be any celestial beings designated to judge humanity donning striped robes, because you already know that an Adidas attorney, rising from the debris of Armageddon, may file a lawsuit against them over consumer confusion.
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