Thom Browne’s victory over Adidas in January should have been good news for designers. After all, a jury decided that Thom Browne’s use of stripes in his designs did not infringe on Adidas’s intellectual property. But the case should give designers and fashion houses pause when they’re developing their collections.
The fact that the case went all the way to a jury means that companies can find themselves in expensive legal entanglements if a titan like Adidas decides to file a lawsuit — even if it is in the wrong.
Here’s a breakdown of the Adidas v. Thom Browne case and the legal lessons it can teach designers.
Trademark Dilution and Thom Browne’s Courtroom Fashion Statement
Adidas brought a lawsuit in a New York federal court against Thom Browne for trademark infringement, unfair competition, and dilution. Adidas claimed Thom Browne was selling sportswear and athletic footwear with stripe designs that were similar to Adidas’s iconic three-stripe trademark. Adidas sued for around $8 million.
Trademark dilution occurs when someone uses a name or design that could weaken or hurt the distinctiveness or fame of a widely recognized brand.
Thom Browne incorporates four white bars into many pieces, including outerwear and athleisure. Many pieces also feature a three-stripe ribbon in red, white and blue.
Thom Browne is a luxury brand. Its ready-to-wear collection— “the uniform” — consists of preppy monochrome blazers, slacks, and ties. The fashion house’s closest competitors are Chanel and Gucci. Browne designed couture for Olivia Rodrigo and Janelle Monáe for the 2023 Met Gala; his textured gown for model Sora Choi was widely hailed as the event’s best look. No one wore Adidas to the Met Gala this year.
So, it was simple enough to argue against the unfair competition claim in Adidas’s lawsuit. Arguably, the two brands have different customer bases.
Defense in the case against dilution included a lesson on the use of stripes throughout the history of fashion. Browne’s attorney started his closing statement to the jury with, “Adidas does not own stripes.”
Browne himself made a fashion statement on the first day of the trial, when he wore a shorts suit with knee-high socks displaying four white bar stripes.
Adidas has used promotion over the decades to make three stripes recognizable as its brand — but it’s not necessarily legally distinctive.
The Three Stripes
To claim trademark infringement or dilution, one must have a mark that is distinct. In other words, the mark must serve the function of a trademark and identify the source of the goods to consumers — in other words, it must communicate to the consumer who made them. To be distinct and thus function as a trademark, the trademark itself must serve no aesthetic purpose. “Adidas,” the word on an article of clothes, is very protectable.
Three stripes are not.
In design, the strongest mark would be something which does not appear as a design element of the garment, such as the small Ralph Lauren polo pony frequently found on their polo shirts. You want something that is not decorative. Stripes generally are commonly used to add decoration to apparel.
Even though that’s the case legally, designers will still want to think twice before using stripes as a signature design element in their athleisure garments if they want to avoid getting tangled up in a lawsuit.
Goliath v. Goliath: A Battle of Titans
Thom Browne fought Adidas all the way to a jury trial because he could afford it. Litigation is very expensive. In many intellectual property cases involving trademarks, there may be multiple proceedings running parallel to each other, further increasing costs.
In this case, Thom Browne sought to register a footwear stripe design trademark with the U.S. Patent and Trademark Office, which Adidas opposed in a filing with the Trademark Trial and Appeals Board (TTAB). Therefore, lawyers for both sides worked on two cases at once: the New York federal case, and the TTAB proceeding.
At any point in the litigation process — even before a lawsuit is filed — the parties can reach a settlement. Thom Browne didn’t settle, and instead took the case all the way to a jury trial and won.
The brand took a victory lap on Instagram the next day, posting images of the midriffs of models wearing three-stripe jockstraps from the designer’s spring 2023 menswear collection.
Thom Browne had the resources to fight a mammoth like Adidas. But many smaller designers do not have the money to fight one of the world’s biggest and most recognizable brands.
The Takeaway for Designers
In my experience, the challenge clients face most frequently is falling in love with an idea that is not distinctive enough.
It’s hard to be distinctive. Sure, it’s easy enough to avoid designing garments with three stripes. But there are thousands — if not hundreds of thousands — of other designs you could rub against but not be aware of, because they aren’t as famous as Adidas.
When it comes protecting any logos or trademarks on apparel, you should enlist an attorney to search the landscape and determine whether the idea is distinctive enough to avoid potential infringement. It’s best to do this search in the early stages of the design process so you don’t get too emotionally invested in something that is too similar to something else.
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