Adidas is asking the U.S. Supreme Court to intervene in its years-long trademark battle with Thom Browne, following a jury verdict that cleared the luxury fashion brand of infringing its three-stripe mark. The latest filing centers on four internal Thom Browne emails that were not produced during discovery and that adidas says contradicted the company’s trial defense.
In a petition for a writ of certiorari filed on September 28, adidas asked the Supreme Court to review an April 2026 decision by the U.S. Court of Appeals for the Second Circuit. The appeals court found that Thom Browne’s lawyers negligently failed to produce the emails but held that negligence alone does not constitute misconduct warranting relief from a final judgment under Federal Rule of Civil Procedure 60(b)(3). Adidas argues that the ruling conflicts with decisions from other federal appeals courts that permit relief under the rule for negligent or inadvertent discovery failures.
The Undisclosed Emails
The filing stems from a lawsuit that adidas filed against Thom Browne in 2021, alleging that the fashion brand’s Four-Bar Signature and Grosgrain stripe designs infringed and diluted adidas’ three-stripe trademark, particularly as Thom Browne expanded into activewear. Thom Browne maintained that its designs were distinct and argued that adidas was effectively attempting to claim exclusive rights over stripes more broadly. A New York federal jury sided with Thom Browne in January 2023, rejecting adidas’ infringement, dilution, and unfair competition claims.
While the case was on appeal, adidas obtained four internal Thom Browne emails produced in related litigation abroad that had not been disclosed in the U.S. case. In one email, Thom Browne’s head of menswear wrote to founder Thom Browne that, given adidas’ presence in sportswear, it was “inevitable” that the company’s white four-bar design would be interpreted as adidas stripes, particularly on accessories. Another described the design as “too much in the spirit of adidas.” In a separate exchange, Browne acknowledged an earlier discussion about avoiding the four-bar motif because of adidas.
Adidas argues that the emails were relevant to the likelihood of consumer confusion and could have been used to challenge testimony presented at trial, as they contradicted Thom Browne’s trial position that its stripe designs had nothing to do with adidas.
The Discovery Dispute
After obtaining the emails, adidas sought relief from the judgment under Federal Rule of Civil Procedure 60(b), relying on provisions addressing newly discovered evidence and misconduct by an opposing party. The district court found that the emails should have been produced and that their absence prejudiced adidas but denied relief. It attributed the nonproduction to an understandable miscommunication involving Thom Browne’s lawyers and an electronic discovery vendor, rather than negligence, and determined that the emails probably would not have changed the jury’s verdict.
The Second Circuit disagreed with the district court’s assessment of the discovery process, finding that Thom Browne’s counsel had acted negligently by failing to review and produce the emails. Nevertheless, it affirmed the denial of relief, holding that negligence alone does not constitute misconduct under Rule 60(b)(3). The court also agreed that adidas had not shown that the emails probably would have changed the verdict, as required under Rule 60(b)(2).
Adidas is now asking the Supreme Court to resolve what it describes as a circuit split over the meaning of misconduct under Rule 60(b)(3). According to its petition, five federal appeals courts have recognized that negligent, inadvertent, or accidental discovery failures can qualify as misconduct, while the Second Circuit requires conduct that is worse than negligent.
THE BOTTOM LINE: Adidas’ petition puts the focus on the discovery process rather than the underlying trademark claims. The Supreme Court must first decide whether to hear the case, but the question adidas raises extends beyond its dispute with Thom Browne: whether negligent failures to produce evidence can justify reopening a final judgment under Rule 60(b)(3).
The case is adidas America, Inc., et al., v. Thom Browne, Inc., 1:21-cv-05615 (SDNY).
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