The move upholds the decision issued by The Netherlands’ Hague Court of Appeals in January last year—a ruling that found defendant H&M did not infringe on Adidas’ Three Stripes trademark when it released a collection of exercise apparel bearing twin parallel lines.
Adidas said it was “disappointed” and described the ruling as “surprising given three lower court decisions in this case, which all confirmed infringement of Adidas’ 3-Stripe trademark.”
“The 3-Stripe trademark of Adidas has been used consistently for many years on Adidas apparel products and is highly distinctive,” Adidas said in a statement. “It is well-known worldwide. Adidas will continue to use and promote the 3-Stripe trademark extensively, in order to further enhance the distinctiveness and reputation of the mark. Meanwhile, Adidas will continue to use legal means provided by relevant laws including Trademark Law and Anti-Unfair Competition Law to protect its legitimate rights.”
An H&M spokesperson, meanwhile, said the company is “pleased” by the decision.
“We are of the firm opinion that our 2 stripes design never infringed the adidas’ 3 stripes trademark and are pleased to see this case finally come to an end after 24 years,” the spokesperson said. “It has been an important case for us as we don’t think that anyone should be able to claim exclusive rights to a wide variety of stripes. Stripes are a generic and commonly used feature in fashion design, that said, we respect Adidas and their 3 stripes trademark.”
The two companies’ trademark tussle began in 1997—the same year the first Gen Zers were born—when Adidas discovered H&M was selling fitness apparel with parallel vertical white stripes. The sportswear company soon demanded an injunction against the Swedish fast-fashion retailer—a claim that a Dutch district court upheld in October 1997.
Since then, the case has bounced around the judicial system, at one point appearing before the Court of Justice of the European Union. A number of times, the case had been found in Adidas’ favor, including in 2017, when a district court declared it had a valid claim for infringement. The decision in January 2020, however, overturned that ruling.
Though Adidas initially asserted its case was levied to defend the infringing use of “two color-contrasting parallel vertical stripes,” it later amended its complaint to only include “stripes of equal width that run parallel to each other at a distance that visually looks more or less as wide as the width of the stripes themselves.” Based on this criteria, The Netherlands’ Hague Court of Appeals decided H&M’s workout gear did not infringe.
“Assuming that only the use of a ‘two-line sign’ on sportswear as Adidas described infringes the brands of Adidas, the Court of Appeal is of the opinion that H&M has not infringed by using the Work Out clothing,” the court wrote. “In the opinion of the court, it cannot be said that the space between the two stripes on the Work Out clothing is visually more or less the same as the width of the stripes.”
After 23 years of litigation, the court ordered Adidas pay H&M the costs of the proceedings and of the appeal—an amount it placed at 79,745 euros, or about $92,000 at today’s exchange rate. On Friday, The Netherlands’ Supreme Court dismissed Adidas’ appeal to that decision and ordered it to pay H&M another 23,000 euros, roughly $26,500.
“The Supreme Court has assessed the complaints about the judgment of the Court of Appeal,” the court wrote. “The outcome of this is that these complaints cannot lead to the annulment of that judgment. The Supreme Court is not required to provide reasons for its decision.”
The ruling brings an end to just one chapter of Adidas’ long-running war to defend its triple-stripe trademark. In 2008, a U.S. District Court judge wrote that the company had pursued more than 325 infringement matters involving its 3-Stripe mark in the U.S., filed more than 35 separate lawsuits for infringement of the mark and entered into more than 45 settlement agreements with companies selling infringing footwear.
In the 13 years since that judge’s statement, Adidas has shown no sign of slowing down, bringing cases against companies like Puma, J.Crew and Skechers. In 2017, it even initiated a trademark opposition proceeding against Tesla after the automaker attempted to register a logo consisting of three horizontal stripes. The electric car company quickly withdrew its application.
Earlier this year, Adidas filed a lawsuit against Thom Browne alleging its use of two-, three- and four-stripe designs on sportswear and sneakers infringed on its “famous and distinctive” three-stripe trademark. The high-end fashion brand’s partnership with the European soccer club FC Barcelona further exacerbated the matter, it argued, as it was promoting its goods using soccer players sponsored by Adidas—including “most notably” Argentine superstar Lionel Messi.
The suit alleges Thom Browne committed trademark infringement, engaged in unfair competition, diluted the distinctiveness of Adidas’ three-stripe mark and caused “irreparable injury” to its goodwill and business reputation.