3 Stripes And They're Out?! Is Adidas' Iconic 3-stripe Mark Losing Its Distinctiveness?

BI
Barnard Inc.

Contributor

Barnard Inc is a full-service commercial law firm, with services covering corporate and compliance, intellectual property, construction, mining and engineering, property, fiduciary services commercial litigation, M&A, restructuring, insurance, and family law. Our attorneys advise listed and private companies, individuals, and local and foreign organisations across South Africa, Africa and internationally.
Adidas, famous for its three-stripe design, has always been very protective of its trade mark, often taking vigorous legal action globally to defend it.
South Africa Intellectual Property
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Adidas, famous for its three-stripe design, has always been very protective of its trade mark, often taking vigorous legal action globally to defend it. Recently, Nike has found itself on the receiving end of Adidas' legal challenges.

According to The Fashion Law, Nike scored a win in a recent legal battle in Germany. The Higher Regional Court in Dusseldorf ruled in favour of Nike, allowing the company to use three stripes on some of its trouser designs. This decision overturned a 2022 ruling by the Dusseldorf regional court, which had prohibited Nike from using two or three stripes on five of its trouser designs.

The court's latest decision permits Nike to use the stripes on four of the disputed designs, while still banning the stripes on one model. Nike argued that Adidas' protection of its three-stripe mark was too broad, pointing out that striped designs are common in the sportswear industry and not unique to Adidas. They claimed that the public does not necessarily associate every striped design with Adidas.

Adidas, however, argued that consumers do recognise the multi-stripe mark as distinctly theirs, especially on sports apparel.

This latest decision highlights the ongoing complexity of trade mark disputes when deciding whether a mark carries distinctiveness – for example, as directed in Section 9 of the South African Trade Marks Act 194 of 1993. Trade Mark distinctiveness refers to how unique a brand or product name is in the context of trade marks and service marks. It plays a crucial role in determining whether a trade mark is eligible for registration.

Fanciful Marks (entirely invented) and arbitrary marks (common words in a context unrelated to their dictionary meaning – i.e. 'Apple' computers) are examples of marks which should be eligible for registration. On the other hand, suggestive marks (hinting on the product's nature and without directly describing it) and Descriptive marks (describing the products) generally will not be eligible for registration without acquiring distinctiveness through secondary meaning . The same principles apply when considering the distinctiveness of logo marks, whether it is an ordinary representation or unique to the products and service offering.

Whether or not the recent ruling will turn the tide on Adidas' usual enforcement position – relying on its well-known registered three-stripe trade mark within the sportwear industry – is yet to be seen, as the trade mark battles continue to shape the future of the fashion industry.

For now, the rivalry between Nike and Adidas in the sportswear market shows no signs of slowing down.

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