Forever 21 Inc. wants some answers on an intellectual property question that is still contentious in fashion circles: How far does the Adidas “Three-Stripe Mark” go?
The mass retailer raised the question in documents filed Friday in Oregon federal court, where its ongoing infringement battle with Adidas is playing out amid the backdrop of Forever 21’s reported shuffle toward bankruptcy.
Adidas, which filed its complaint in 2017, has since asserted its “Three-Stripe” trademark over dozens of Forever 21 styles including shirts, shorts and pants. But Forever 21 has said the looks that Adidas has targeted bear anywhere from two to five stripes or more, and argued that the sportswear company is trying to impose an expansive definition of its three-stripes trademark that would block others from using stripes at all.
“Adidas, by accusing Forever 21 and others of infringing its boundless ‘Three-Stripe Mark,’ pressures its competitors into giving up much more than Adidas could ever be entitled to under the law,” Forever 21 wrote in its filing Friday.
“Unwilling to concede ornamental designs to this stripes bully, Forever 21 decided to fight back, with the hope that this lawsuit would bring clarity to the market as to the limits of Adidas’s rights in striped clothing,” the budget retailer argued.
Adidas could not be reached for comment Monday.
The company maintains that it owns trademark registrations for three-stripes designs in a number of contexts including on shoes and ath-leisure apparel including jackets and pants, according to filings in the case.
But beyond its registrations, the sportswear firm also described its stripes as having cultural import and widespread market recognition — annual Adidas sales within the U.S. alone are in the tune of “hundreds of millions of dollars” according to the company.
Such arguments generally go toward trying to establish trademark infringement, which courts assess in terms of reputational harm to the company with the trademarks, and customers’ confusion between the trademark-holder’s products and those of others. Adidas has argued that Forever 21 was selling products with “confusingly similar imitations” of its trademarked stripes, according to an amended complaint it had filed in July 2017.
The idea of customer confusion is an animating force in these disputes. Adidas and Forever 21 themselves have previously butted heads on two other occasions in the past 13 years over stripes, settling both times, according to court filings in the case. As part of their settlement in 2015, Forever 21 had conceded it wouldn’t use the “Three-Stripe Mark or any design, mark, or feature that is confusingly similar to the Three-Stripe Mark.”
Adidas has argued in this case that Forever 21’s alleged infringement is intentional, particularly in light of this legal history.
Forever 21 acknowledged its past settlements, but argued to the court Friday that the three-stripe mark should be more precisely defined, and if not, it would include “thousands of unspecified, non-registered designs comprising three stripes,” according to its filing.
“Whatever the length, width, spacing, orientation, or location, if Adidas can find a way to count three of something on a shoe or garment, it is all the same ‘Three-Stripe Mark,’” Forever 21 argued Friday.
The dispute could potentially wind up before a jury to decide whether the Forever 21 apparel that Adidas has identified really infringe on its trademark. But before then, the court should help refine the scope of the three-stripe mark, Forever 21 argued.