Even though 10% of consumers surveyed named "Adidas" after viewing H&M's striped work out clothing, this was not sufficient to assume there was confusion in the marketplace according to the Dutch Supreme Court. Even where there is some evidence of the origin being mistaken for another, there is a reluctance to allow a monopoly right where a trade mark also has a decorative function. This decision demonstrates how challenging it is for brand owners of non-traditional trade marks to enforce their rights.
the court stated that the results of market research reports produced in connection with the case "are not sufficient reason to assume that there is a likelihood of confusion" among consumers as to the source of H&M's striped apparel. One report, for instance, which was provided by H&M (and contested by adidas) revealed that "only 10% of [the consumers who were surveyed] named adidas after [viewing] H&M's [striped] Work Out clothing."
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