A federal appeals court has likely brought to a close adidas’ attempt to revive its long-running trademark case against Thom Browne. In an opinion issued on April 29, the United States Court of Appeals for the Second Circuit affirmed the Southern District of New York’s decision refusing to disturb a jury verdict finding Thom Browne not liable on all counts. More than merely closing the door on this closely watched case, the ruling makes clear how difficult it is to reopen a case, particularly when relying on new evidence or errors in discovery.
The Case in Brief: Adidas filed suit against Thom Browne in 2021, accusing the fashion brand of trademark infringement and dilution in connection with its use of stripe-based designs on activewear. Following a 2023 trial, a jury sided with Thom Browne and the district court issued a final judgment. While that verdict was on appeal, adidas obtained previously undisclosed internal emails through separate U.K. litigation, including communications in which Thom Browne personnel raised concerns that certain uses of its stripe designs could be read as adidas-like, particularly in sports-related contexts.
Relying on those emails, adidas moved to reopen the case, but the district court denied the motion, prompting an appeal. The sportswear giant argued that it should be relieved from the judgment under Rule 60(b)(2) and (b)(3), which respectively allow a court to reopen a judgment based on “newly discovered evidence” and “fraud, misrepresentation, or misconduct by an opposing party.”
The Second Circuit Weighs In
On appeal, the Second Circuit upheld the district court’s conclusion that the emails did not satisfy Rule 60(b)(2)’s requirement that newly discovered evidence probably would have changed the outcome. While adidas framed them as critical evidence of confusion and bad faith, the court found them insufficient to alter the result.
The decision reflects three constraints on post-trial relief: internal opinions that did not bear directly on the likelihood-of-confusion analysis, the weight of the trial record, and the high bar for proving actionable misconduct (and in doing so, the court made clear that Rule 60(b)(3) cannot serve as a workaround for Rule 60(b)(2)’s stricter outcome-based standard) …
> Not Evidence of Confusion: At the core of the appeals court’s determination is a simple point: internal brand perception is not a proxy for legal confusion. The court emphasized that the emails reflected internal opinions, while likelihood of confusion is assessed under an objective, consumer-focused standard. It also found that the emails did not concern the activewear products at issue, instead addressing formalwear and accessories, and did not bear on the central issues presented to the jury.
> The Trial Record Carries the Day: The ruling also reinforces the weight courts place on the trial record. The jury had already been presented with, and declined to credit, more direct evidence of confusion, including survey data. Against that backdrop, the court concluded that adidas failed to show that the emails “probably would have changed the verdict.” The takeaway is that where stronger evidence fails at trial, weaker or tangential material is unlikely to justify reopening the case.
> Negligence Is Not “Misconduct”: Finally, adidas’ fallback argument under Rule 60(b)(3) fell short. In a notable clarification, the Second Circuit held that “misconduct” sufficient to reopen a final judgment does not include merely negligent discovery failures, requiring instead a higher degree of culpability, though without defining the precise threshold.
While Thom Browne’s failure to produce the emails stemmed from breakdowns in its e-discovery process, the court characterized those failures as negligent, not intentional. That distinction proved decisive, reinforcing that vacating a final judgment is extraordinary relief that requires more than mere negligence.
THE BOTTOM LINE: Taken together, the Second Circuit’s decision does more than affirm the outcome; it clarifies how limited the grounds are for revisiting a case under Rule 60(b). The court makes clear that post-trial relief is not an opportunity to introduce evidence that does not bear directly on the issues as tried: materials that are peripheral to the products at issue, untethered to the likelihood-of-confusion analysis, or weaker than evidence already rejected by the jury are unlikely to justify reopening the case.
At the same time, the court clarifies the role of discovery failures, drawing a firm line between negligence and the kind of misconduct required to disturb a final judgment.
The case is adidas America, Inc., et al., v. Thom Browne, Inc., 1:21-cv-05615 (SDNY).
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