Three stripes and you’re out!

By Brand Heeler

Adidas’ Iconic Three Stripes Not Distinctive Enough for EU Trademark: Brand Protection in Jeopardy?

Protecting very simple logos, no matter how famous, can be problematic.

Adidas likes to think of itself as synonymous with its famous logo – so much so that its founder, Adolph ‘Adi’ Dassler, referred to it as the ‘three-stripe company’. From early days, Adi was concerned to give his products a distinctive look. Very much ahead of his time, he designed his shoes to stand out on the feet of successful athletes, including Jesse Owens at the 1936 Berlin Olympics.

Starting with simply picking out reinforcement straps in a contrasting shade, adidas soon adopted ‘three stripes’ as its core brand. (Along the way it bought Karhu Sports of Finland out of its conflicting rights for the equivalent of £1,500 and two bottles of whisky – surely the greatest bargain since Esau and Jacob!) And since then it has guarded its brand assiduously. In 2003, it even managed to get EU trade mark law rewritten so that trade marks with a reputation could be asserted against any sort of goods, not just dissimilar ones as originally drafted.

However, the adidas brand juggernaut recently hit a rare bump in the road after the EU General Court ruled that the general concept of three stripes (as opposed to a specific three-stripe logo) was not ‘distinctive’ enough to be registered as a trade mark for clothing, hats and shoes. Adidas also failed to convince the court that ‘three stripes’ had acquired a distinctive character throughout the EU. Their evidence only covered five out of the 28 member states and was not deemed sufficient to extrapolate to the entire EU.

This is unlikely to be the end of the matter as adidas are said to be contemplating an appeal. However, it highlights the difficulties brandowners face in trying to extend their brand protection beyond specific names and logos. Nestlé’s failure in 2018 to register ‘a design of four trapezoidal bars aligned on a rectangular base’ separately from the better-known trade mark ‘KitKat’ is another case in point. Part of adidas’ problem was that their trade mark was registered ‘black-and-white’ (as illustrated above) but regularly used ‘white-and-black’. This led to further musings as to whether it was meant to show three dark stripes on a light background or two white ones on dark? We think it’s a shame no zebras were available to be called as expert witnesses.

This article contains our thoughts and opinions on an issue of general interest and is written from the perspective of Australian and/or English law. It is not legal advice and is not provided in the context of a solicitor-client relationship. It may not even be relevant to your jurisdiction. No duty of care is assumed or accepted. Please carry out appropriate research and consult with a suitably qualified legal expert before taking any action or making any decisions.