Stars and Stripes Forever
The German athletic apparel giant sued several competitors, including H&M, in Dutch court, alleging that their use of 2-stripe designs constituted trademark infringement. Before ruling on the infringement question, the Dutch court asked the ECJ whether apparel designers' general need for access to such a basic design element -- stripes -- could be taken account in the infringement case.
The ECJ's answer? No. Infringement is determined by whether there is likelihood of consumer confusion between the adidas mark and its competitors' versions. If there is a clear connection in the public's mind between 3 stripes and adidas -- and there is -- arguments about the need to preserve general access to stripes are irrelevant. The case will now go back to the Netherlands to allow the court to conduct a standard consumer confusion analysis.
Wait! Does that mean that no designer can ever again use 3 stripes, or 2, or 1 for that matter?
No, not really. Designers use stripes all the time without arousing adidas' anger -- take a look at this Balenciaga jacket from Fall 2007, for example. So long as the stripes don't confuse the public as to whether the item is an adidas product, no problem. And since adidas sells very few USD $2,000+ blazers in exclusive department stores, this isn't likely to become an issue. As the company noted in a press release, "We do not seek to prevent the use of decoration, but the use of striped markings that confuse consumers, or cause them to make a link with our company and its famous trademark."
Presumably the military won't have to abandon sergeants' stripes, either.
Still, at least direct competitors in the sporting goods arena are likely to avoid striped logos going forward. Could companies monopolize other basic design elements?
Don't panic yet. A decade ago, Converse and the Dallas Cowboys famously sparred over a star, another basic design symbol that each was using as a trademark. They both still own multiple registrations for a five-pointed star, albeit on different goods -- the football team doesn't seem to be in the shoe business. And neither seems too concerned about YSL's spring accessories collection.
The bottom line is that yes, a company's registration of a basic design as a trademark will create limitations on others' use of that symbol in ways that might be interpreted as indicative of the source of the goods. But use of stripes or stars as mere decoration is fine unless consumers get confused.
Most companies, moreover, don't select basic symbols standing alone as their logos. Why? Because it's too much work to create an association in the consumer's mind between parallel stripes or a single star and the source company. It's much easier to just write your company name on the product and be done with it.
The adidas case presents an interesting issue -- but not an immediate threat to the basic vocabulary of design. Anyone attempting to imitate adidas' 3-stripe trademark, however, may find himself wearing prison stripes instead.