After several days of testimony, jurors hearing the hotly contested “three stripes” lawsuit in a New York City courtroom rejected claims that Thom Browne’s use of a four-stripe motif infringed and diluted Adidas trademarks.
The 57-year-old designer and founder behind his namesake—and victorious—fashion label was “relieved” and the defense team “buoyant” after the jury found Thom Browne not liable in what defense consultant and intellectual property legal expert Harley Lewin described as a “bet-the-company case” that was filed in 2021.
“Nobody wants to engage in this kind of litigation and entertain the kind of risk to a substantial chunk of your business,” he told Sourcing Journal Friday, saying the label Zegna has majority owned since 2018 had “no choice” but to take the fight to court after mediation attempts failed to resolve the long-running dispute. “I think the CEO [Rodrigo Bazan] testified to that. He felt that a substantial chunk of the company was at risk, and the jobs and the shops.”
The attorney believes Adidas probably expected the defendant to settle out of court, which is what happens in 87 percent of similar cases. “You have a $34 billion behemoth breathing down your $250 million neck,” likely what Kanye West’s one-time collaborator spends on advertising in any given year, he said.
Lewin—who was lead counsel representing Christian Louboutin in 2011’s landmark Yves Saint Laurent red shoe showdown—said the jury quickly understood that this wasn’t the kind of run-of-the-mill rip-off case commonly seen in fashion. “Thom’s personal testimony was enormously persuasive. I mean, frankly, he was his own best witness,” he said of the former Club Monaco creative development exec. “He’s an ordinary guy. He’s not raised in the Paris or Milan hoi polloi. You know, he’s an Allegheny guy who went to Notre Dame, you know, banged around the world a bunch, sold his car, came back to New York to do clothes. And he added the bands on the arm to reflect what he’d grown up seeing in athletic gear that high schools and colleges passed out to teams—the university jackets with bands on the sleeves.”
A few “Perry Mason” moments may also have persuaded jurors, according to Lewin, who believes Adidas ultimately was in a “difficult” position. “It was a real stretch to convince people that you could sleep on this thing for 12 years,” he said, referring to the dispute’s origins back around the mid-2000s when a fledgling Browne wanted to inject a “sporting influence” on his label’s high-end designs.
Though Adidas objected to Browne’s use of three stripes at the time, and his “10-man company” told the German giant it capitulated by abandoning that particular motif, the lines of communication went dormant until around 2018 when the sneaker giant got wind of the label’s plans to trademark a particular design in the EU. By then Thom Browne was somewhere in the neighborhood of $250 million and slapping its signature four-stripe mark on roughly 40 percent of its clothes, Lewin estimates, largely because of Adidas’ “silence” on the trademark matter during those ensuing 12 years.
What really got Adidas’ attention was the defendant’s extension into its bread-and-butter territory—clothing “made for sport,” in Lewin’s words—though Thom Browne was producing sweatpants as far back as 2010. Material quality and price kept the two worlds apart, however.
In the end, the case boiled down to one simple reality. “As Robert, my colleague, said in the closing statement, Adidas doesn’t own stripes,” Lewin said, referring to lead attorney Robert Maldonado of Wolf Greenfield & Sacks. “They may own a claim and have registered trademarks to a formulation of stripes and application of a vertical three-stripe mark ,but they don’t own all kinds of stripes and they definitely don’t own all kinds of four stripes. That was a substantial part of a dispute.”
In a statement, Adidas said it was “disappointed” with the trial’s outcome and vowed to “vigilantly enforce our intellectual property, including filing any appropriate appeals.”
Lewin isn’t sure that’ll do much good, however.
Procedural errors notwithstanding, “jury decisions are really sacrosanct,” he said, adding that appellate courts aren’t likely to “second-guess” a matter already settled through a jury trial.
If anything, a different outcome would likely have a “chilling effect” throughout fashion, Lewin said, comparing the situation to how some local governments would call in the National Guard to dissuade anti-Vietnam War marches decades ago.
“I think that’s very much at play here,” Lewin said of how a “guilty” verdict could have influenced other designers. “What you’re doing is sending a message out to the fashion world: ‘wait a minute, Adidas says three stripes may not only be three stripes, maybe it’s two, four, five.”
Some creatives in fashion might be breathing a sigh of relief after Thom Browne’s courtroom victory, Lewin said.
“I think designers will relax a bit, but I don’t think they’re going to start whittling down Adidas’ trademarks because if they do that then Adidas will come after them,” he said. “And as I say, most of them don’t have the wherewithal to defend.”
Lewin tipped his hat to the plaintiff’s commitment to the years-long agitation.
“Credit goes to Adidas—and I would say this for sure—for taking a very, very, very difficult trademark to protect straight lines.”