Court sides with H&M in the stripe war with Adidas!

For 23 years, Adidas and H&M have waged war over ‘stripes’. Adidas is the owner of the famous ’three-stripe motif’ in the category of sports and leisure wear. In 1997, H&M sold workout apparel featuring a ‘two-stripe motif’. Adidas filed an injunction for H&M to cease selling that apparel. For a long time, Adidas came out on top of the battle, but recently the Supreme Court in The Hague ruled that H&M does (and did) not constitute an infringement of the Adidas three-stripe trademark. Manita Hamberg, intellectual property attorney, discusses the development of this battle of the titans and the considerations of the court in this last verdict.

Injunction proceedings

The dispute between Adidas and H&M started with an injunction issued in 1997. This ended on 2 October 1997, with a verdict in favour of Adidas: The preliminary relief judge ruled that H&M infringed on Adidas’ three-stripe trademark and was compelled to cease using the two-stripe motif. After going through various authorities – court, the Supreme Court of the Netherlands, Court of Justice of the European Union, then back to the Supreme Court with a reference to a different court – this positive result for Adidas was confirmed in a decree on 1 December 2015.

Proceedings on the merits

The 1997 injunction verdict further determined that within 1 year of the verdict, Adidas was to initiate proceedings on the merits under penalty of dissolution of the preliminary injunction. In these proceedings on the merits, the Court of Justice in The Hague finally delivered a judgement, again in favour of Adidas, in 2017. H&M then appealed the judgement. In a recent decree on 28 January 2020, the Court of Justice in The Hague sided with H&M and does not confirm its infringement.

Court zooms in on brand and trademark

In the court’s view, Adidas’ three-stripe trademark is distinguished by the specific combination of three vertical parallel stripes with distances in between equal to the width of the stripes. This constitutes a repetition of elements: a pattern. The pattern covers a substantial part of the shoulder/sleeves and one side of the trousers. H&M’s two-stripe mark is described as one wide stripe with a (narrower) line in between. It does not constitute a pattern, as there is no repetition of elements.

No likelihood of confusion with minimal degree of similarity

Now the stripe combination and spaces in between in the motifs, and marks, exhibit a relevant discrepancy (the number of stripes, the width of the spaces in between and the resulting total image), the Court states that this constitutes only a minimal degree of similarity between the motif and the Adidas trademark. As the similarity is so minimal and that similarity is a result of the non-distinctive elements in the trademark and the motif (the stripes), the Court is of the opinion that, even when it is assumed that Adidas is a famous brand with a large scope of protection and that this case involves a similar or equivalent product, it cannot be assumed that this will result in a likelihood of confusion. The court also judged that the submitted market research could be called managerial and did not provide a foundation for assuming likelihood of confusion.

Further steps

This has been disappointing for Adidas, which must now pay H&M €80,000 in legal costs. Adidas can still go to the Supreme Court to appeal in cassation, but that only offers the opportunity for legal questions, and will not entail any findings of fact over the stripes. With this, the battle seems to finally have come to an end.

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