While we wait for adidas to file a trademark infringement suit against Nasty Gal for that problematic skirt, the German sportswear giant has first filed suit against the American subsidiary of Swiss luxury brand Bally, in connection with several footwear designs. According to its complaint, which was filed late last month in U.S. District Court for the District of Oregon (Portland Division), adidas alleges that “despite Bally’s knowledge of adidas’s rights in the famous Three-Stripe Mark [and adidas does have many federally registered trademarks for it], Bally currently is offering for sale and selling footwear featuring two and/or three parallel stripes on the side of the shoe” with the goal of competing directly with adidas.
In its rather strongly-worded complaint, adidas claims that Bally’s two and three-stripe designs – a number of which are currently being sold on the brand’s e-commerce site for upwards of $450 – are “in blatant disregard of adidas’s rights.” At the heart of the matter: adidas claims that such shoes “are likely to cause consumer confusion and deceive the public regarding [the] source, sponsorship, or affiliation” of Bally’s shoes in connection with adidas. This element is particularly relevant as at the heart of every trademark infringement case is the question of whether consumers are likely to be confused as to the source of the allegedly infringing goods. In short: Is there a chance that consumers will think the 3-stripe Bally sneakers are made by adidas or are made in collaboration with adidas, etc.
Adidas alleges that Bally knew exactly what it was doing, and thus the brand’s actions are particularly egregious, as they “demonstrate an intentional, willful, and malicious intent to trade on the goodwill associated with adidas's federally registered Three-Stripe Mark to adidas's great and irreparable injury.” In fact, adidas goes on to state: “Bally intentionally designed and manufactured footwear bearing confusingly similar imitations of adidas’s Three-Stripe Mark to mislead and deceive consumers into believing it was manufactured, sold, authorized, or licensed by adidas.”
Such use of the two-stripe and three-stripe trademarks is especially problematic, according to adidas, as Bally “uses substantially identical imitations of the Three-Stripe Mark in a manner that is irreparably harming adidas’s brand and its extremely valuable Three-Stripe [trademark].”
In addition to a request for a jury trial, adidas wants Bally to immediately and permanently cease all sales, distribution, and marketing of the allegedly infringing garments, deliver the garments to adidas so they can be destroyed and pay up a wide array of damages, which may be in the millions. As for whether that jury trial will ever happen, it seems unlikely, as these cases – especially ones in which adidas has sued for trademark infringement (as we have seen with Forever 21, Marc Jacobs, and others) – tend to settle out of court before trial.