In March, the European Union afforded a wide range of protection for an adidas sneaker design, holding that the 2-stripe sneaker design created by Belgian footwear company, Shoe Branding Europe BVBA is confusingly similar to adidas’ 3-stripe design. The European Court of Justice held that the difference between 2 and 3 stripes, and other minor design differences, were insufficient to affect the similarities between the two sneaker designs under European trademark law.
From adidas’ point of view, the widespread association of its brand with striped sneaker designs may make this result seem like a no-brainer. But what if the number of stripes between plaintiff and defendant differed in a U.S. case? Would the case be more challenging, particularly if the overall look of the respective shoe designs are different? To determine whether the offending product infringes adidas’ trademarks and product designs, a U.S. court would have to assess whether the stripes, in light of the overall product design, are likely to cause consumer confusion.
While stripes and other shapes may seem commonplace for fashion products, the U.S. District Court for the District of Oregon has held multiple times that adidas’ 3-stripe design is a famous trademark. Therefore, adidas likely enjoys a wider range of legal protection, particularly against sneaker designs bearing parallel stripes on the side of the product. Thus, a small difference between the number of stripes, whether it be 2 stripes, or even 4 stripes, may have little bearing on the infringement analysis, especially if the overall sneaker design looks similar to an adidas product.
In fact, in 2008, an Oregon jury found that U.S retailer Payless willfully infringed adidas’ 3-stripe registered trademark and various adidas product designs, by selling sneakers bearing 2 and 4 stripes. According to adidas in its complaint, Payless’ sneakers not only contained 2 or 4 parallel stripes on the sides of Payless’ products, but many of Payless’ sneakers looked very similar to certain adidas designs. The jury awarded adidas over $300 million in damages, later reduced to $65 million.
Like Payless, Shoe Branding’s sneaker design arguably bears a similar shape and look to adidas’ sneaker design. Therefore, it is entirely possible that a U.S. court would have reached the same decision as the European court did against Shoe Branding. And thus, it is worth noting that as adidas continues to file an increasing number of trademark-related lawsuits and garner victories, minor differences in the number of stripes are not enough to avoid consumer confusion.
NATASHA REED is a Counsel in Foley Hoag’s Intellectual Property practice, resident in the firm’s New York office. Her practice covers all aspects of trademark and copyright law with an emphasis on global protection for multinational businesses.