30 January 2020TrademarksRory O'Neill

H&M triumphs in Adidas stripe dispute after 23 years

Swedish fashion brand H&M has scored a victory in a 23-year-long trademark dispute with Adidas in the Netherlands over its use of a two-stripe design on sportswear.

On Tuesday, January 28, The Hague Court of Appeal ruled that products from H&M’s ‘Work Out’ line did not infringe Adidas’ Benelux and international three-stripe trademarks.

The two parties have been locked in a dispute over the stripe design since 1997, when Adidas sued on the basis that consumers were likely to associate H&M’s two stripes with the German brand.

Adidas has been active in enforcing trademark rights in its famous three-stripe design across the world.

The German brand looked to have gained the upper hand in the case in November 2017, when the District Court of The Hague ruled that H&M had infringed the three-stripe trademarks.

But that decision has now been overturned on appeal, clearing H&M of liability for trademark infringement.

Fighting for fairness

Speaking to WIPR, H&M’s trademark lawyer said that the decision had been fairly decided on the merits of the case.

Gino van Roeyen, attorney at Lawnch in Eindhoven, first began working with H&M on the dispute in 1997.

Noting that H&M had not been using the two-stripe design (in compliance with the previous ruling in favour of Adidas), van Roeyen said the “only reason” the Swedish fashion retailer had fought the case for so long was in the interests of “fairness”.

“Fairness is what we have been fighting for all along, and this has finally been achieved with the Court of Appeal’s ruling,” van Roeyen added.

The Court of Appeal considered market research which suggested that consumers were unlikely to associate H&M’s ‘Work Out’ sportswear with Adidas. One report said that only 10% of consumers would guess that Adidas was the brand behind the two-striped products.

Adidas had criticised the report’s methodology, but the Court of Appeal found the evidence convincing.

“The market investigations are not sufficient reason to assume that there is a likelihood of confusion,” the judgment stated.

Van Roeyen said the case would likely be significant for many products which feature a two-stripe design.

Only the facts

Adidas had also cited other court decisions and third-party declarations in support of its case that the two-stripe design infringed its trademarks. But the court rejected these references, insisting that the case be decided “on its own merits”.

“That is something we were pushing for all along,” van Roeyen said. “We wanted the case to be decided on the facts and the facts only”.

The court ordered Adidas to pay approximately €80,000 ($88,000) to H&M to compensate for the legal costs incurred at both the district court and on appeal.

Speaking to WIPR, an Adidas spokesperson said the company was “disappointed” by the decision, which it said was “surprising given three earlier court decisions in this case, which all confirmed infringement of Adidas’ three-stripe trademark”.

“We are reviewing the decision in detail and are not in a position to comment further at this time,” the spokesperson said.

Adidas may appeal the decision to the Dutch Supreme Court.

The decision comes as a blow to Adidas in its efforts to enforce its three-stripe trademarks across Europe. Last June, the EU General Court ruled that the German sports brand’s EU three-stripe mark was invalid.

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