On Jan. 28, The Netherlands’s Hague Court of Appeals issued a new ruling in a case dating back to 1997, finding that defendant H&M did not infringe on Adidas’ Three Stripes trademark in a collection of exercise apparel. The ruling forges a path for a new E.U. precedent that could possibly reduce Adidas’ claim on the mark.
In 1997, H&M ran afoul of Adidas’ legal team when it released a collection of workout gear embroidered with a twin stripe motif on the shorts and on the sleeves of the capsule’s T-shirts. Since that time, the two have been battling it out in E.U. courts regarding the legality of the use of stripes in apparel that would not conflict with Adidas’ trademark.
Over the years, the case has had its ups and downs. As recently as 2017, a district court in the Netherlands found that Adidas had a valid claim for infringement despite the fact that H&M’s apparel only used two stripes instead of the German brand’s classic three.
Just three years later, however, the Hague Court of Appeals handed down a dissenting decision finding that the usage of stripes was different enough to be allowable without crossing the infringement line.
Initially, Adidas maintained that its case was levied to defend the infringing use of “two color-contrasting parallel vertical stripes.”
However, H&M’s legal team found that to be too broad and Adidas—hoping to either persuade the court or reach a settlement—decided to amend 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.”
With that as the legal criteria, the court found that H&M’s workout gear did not fit the bill.
“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.”
To reach its findings, the court also considered several market research reports submitted by both sides in its determination of whether or not the allegedly infringing marks would have the effect of confusing consumers, part of the criteria in any infringement case.
Despite Adidas’ claims to the contrary, the court found that the research it offered was insufficient to tilt the case in its direction.
“The Court of Appeal first and foremost argues that market research can at most be a tool for determining the likelihood of confusion,” the opinion read. “The likelihood of confusion cannot be established with sufficient certainty by a market investigation. The possible questions to respondents are often either too vague or too direct to provide reliable answers. In addition, the so-called market leader effect plays a role with well-known brands.”
Along with its judgement, the court ordered Adidas to pay for court costs incurred by H&M over the years, although the athletic brand is currently in the process of appealing that verdict. There is not yet an indication that Adidas will appeal the ruling, according to the Fashion Law blog.