The three stripes belong only to Adidas

How far does the trademark protection of the three-stripe mark created by the well-known sporting goods manufacturer Adidas extend? The Regional Court (LG) Düsseldorf takes the view that it extends very far.

A supplier of various clothing items placed T-shirts on the market which were decorated with three stripes. The internationally active German sporting goods manufacturer Adidas got wind of this and warned the entrepreneur regarding the distribution of the T-shirts and unsuccessfully demanded the submission of a binding declaration under penalty of injunction and reimbursement of the costs of the warning.

For years, Adidas has marked its sports shoes and sports textiles with a three-stripe mark, whereby the three stripes are sometimes also designed in different colours.

The sporting goods manufacturer subsequently obtained an order in provisional measures proceedings, whereby the entrepreneur was prohibited from distributing the T-shirts.

Adidas was of the view that the Adidas marks were well-known marks with a degree of recognition of more than 95 % among the general public. By the entrepreneur's distribution of the T-shirts, which did not come from Adidas, the stripe mark failed to maintain sufficient distance from Adidas goods. For the stripes on the disputed T-shirts were also three parallel stripes contrasting with the background colour at a position typical for its mark.

The court's decision regarding the Adidas stripes

The Regional Court (LG) Düsseldorf (Urt. v. 22.01.2020, Az. 2a O 288/18) decided that the distribution of the T-shirts with the three-stripe mark infringes the trademark rights of the sporting goods manufacturer, as there is a likelihood of confusion.

By distributing the disputed T-shirts with the three-stripe mark without Adidas's consent, there is a use as a trademark. The application of the stripe band serves to identify the origin of the T-shirts from a particular company. For the relevant public is accustomed to seeing the three-stripe mark on clothing items as an indication of origin.

Furthermore, there is also similarity of signs between the disputed presentation of the entrepreneur's products and that of the sporting goods manufacturer Adidas. The three equally sized parallel stripes on the sleeve of Adidas products are found on the disputed T-shirts in the same position. The applied band with the stripes conveys to the relevant public, due to the equally black or black-blue background colour, an image of three stripes separated from one another at equal intervals, which stand out from the base colour of the T-shirt, according to the court.

Visual trick does not help

The defendant entrepreneur relied on the fact that the T-shirts distributed by him did not only display three stripes but five. However, this five-stripe mark was not recognisable, according to the court.

Although the stripes were a so-called ribbon band sewn on, this was not recognisable upon cursory examination due to the identical background colour of the T-shirt. Rather, the applied band conveyed, due to the equally black or black-blue background colour (colour of the T-shirt), an image to the relevant public of three stripes separated from one another at equal intervals, which stand out from the base colour of the T-shirt.

The similarity was not opposed by the fact that the middle stripe was in red colour, whilst the two outer stripes were in white. For even so the stripes would stand out clearly from the (background) base colour of the T-shirt black or blue-black.

Conclusion

Due to the high degree of recognition of the three-stripe mark of the sporting goods manufacturer Adidas, this presentation enjoys extensive trademark protection against imitation by third parties.