Thom Browne Wins Stripes Trademark Case Against Adidas

Thom Browne He won the trademark infringement lawsuit against him Adidas.

The jury returned with a verdict on Thursday afternoon. It came less than three hours after closing argument had ended.

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Adidas America and Adidas AG had been seeking damages in the amount of $867,225 — the amount the companies agree it would have received in licensing fees from Thom Browne Inc., if the two had worked together — as well as the $7,011,961 million in profits it alleges the American designer made from selling apparel and footwear with stripes. The case was heard by Judge Jed Rakoff in Manhattan’s Southern District Court.

Thom Browne’s and Adidas’s attorneys made their final arguments Thursday in closing statements in the trademark violation case between the two companies. After eight days of hearing testimony from both sides, the jury, consisting of eight members, will decide whether Thom Browne, Inc. is liable due to trademark infringement.

In his closing argument, R. Charles Henn Jr. of Kilpatrick Townsend & Stockton LLP, who represents Adidas, reiterated the German sports company’s main points and reminded the jury that every trademark case has three interested parties — in this case, Adidas, Thom Browne and the public. The general public, he said, could be confused by the designer’s use of stripes on products that are in Adidas’s wheelhouse such as compression tights, T-shirts, jackets and other sports-themed apparel, as well as sneakers.

Henn explained that Adidas is well-known for its three-stripe trademark, which it has used in the U.S. since 1950. This makes it easy for consumers to confuse the manufacturer when they see Thom Browne pieces in shops or on the streets. Adidas is not alleging that anyone spending $3,000 on a Thom Browne cashmere sweatpant and hoodie with stripes on the side would believe they were purchasing an Adidas product, he stressed, but if the product wasn’t clearly identified as Thom Browne on social media or when being worn in public, there could be confusion.

Henn said that Adidas’s “multiple” trademark registrations cover the use of three stripes on apparel and footwear in black-and-white or color as well as on the trifoil logo it began using in the 1970s and the “badge of sport” corporate logo it started using in the 1990s.

Adidas has used the stripes in various ways over the years. The company also spends $300m a year advertising the stripes. Products sporting the mark in America account for $3.1billion in annual sales, he stated.

“It is one of the strongest trademarks in the United States when it comes to apparel and footwear,” Henn said.

Thom Browne used three stripes on some pieces, but after Adidas approached them in 2008, they switched to four parallel bars. Henn explained that consumers often confuse the number of stripes if they are viewed from far away. In addition, the “negative space” between the primary stripes can create the optical illusion that there are three bars.

He reminded the jury about the Hal Poret consumer survey that showed 26.9% of 2,400 participants believed Adidas was a manufacturer of Thom Browne-related items with four parallel stripes.

Henn also pointed to Thom Browne’s move to increase its sportswear business by partnering with sports teams such as the FC Barcelona soccer club and its star athlete at the time, Lionel Messi, who had been an Adidas-sponsored ambassador for 15 years, as well as the Cleveland Cavaliers of the NBA where Adidas has had a long relationship, as evidence of bad faith among the Thom Browne team.

Thom Browne’s attorney, Robert T. Maldonado of Wolf, Greenfield & Sacks P.C., started his closing argument with a simple statement: “Adidas does not own stripes.”

He stated that Thom Browne was the designer and founder behind the brand. The courtroom’s right side was filled Thursday with his team members, wearing head-to-toe looks taken from the collection. “He’s recognized as a gamechanger and an icon in the fashion industry,” Maldonado said of Browne. “The notion of Thom Browne wanting to trade on the reputation of Adidas offends him. He is not Adidas.”

Since the beginning, Browne has been using stripes, he said, to reference collegiate varsity sweaters and he “never considered Adidas” until he was approached by the company in 2007. To avoid any legal issues with the sports giant, he agreed to change his marking to four parallel bars.

Maldonado said that Adidas’s trademarks show that it only owns three bars that it uses horizontally nearly all of the time. It also has trademarks for a quadrilateral symbol bar logo.

He referred to the testimony of several witnesses throughout the trail, who, when asked for a precise definition for the three stripes mark, stated that it could be one to five or six bars depending on the usage. And the “smooshing” together of the bars on a collaboration with Gucci, was also defined as three bars, another witness testified. On the New Classics collection launched last year, Adidas used stripes on the left sleeve, which a company executive said was “not where you usually see them,” Maldonado said, adding, “there is a complete lack of clarification.”

He then proceeded to show documents from Adidas’s internal branding guidelines that designers can only tilt the stripes 20 degrees and use them vertically, never horizontally. Maldonado also stated that white-on-white stripes such as the one Thom Browne used on his sneakers is against the rules. “How are we supposed to know that three stripes mean with all this inconsistent messaging from Adidas?”

Maldonado ended his statement with a comment that Thom Browne’s luxurious pricing means that nobody would mistakenly believe it was Adidas. It is only when they buy something that they think was made elsewhere that harm occurs.

Maldonado asked for nothing from the jury because the companies had lived together for more than a decade, and Adidas didn’t show any evidence of harm. “To award damages, you have to prove harm, so we are asking for zero.”

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