A look from Adidas Originals By Danielle Cathari RTW Fall 2018.

Adidas has relentlessly sought to keep three stripes synonymous with its brand, suing rivals and perceived imposters in the U.S. — but that tenacity doesn’t move trademark authorities everywhere. 

In recent years, the sportswear company has tried to get the European Union to formally recognize three uniform, parallel stripes in any direction as its trademark. At first, it worked the European Union Intellectual Property Office granted Adidas the trademark in 2014. But the office annulled it two years later when the Belgian footwear company Shoe Branding Europe BVBA challenged the mark. The stripes in that broad context were judged to not to be distinctive enough. 

Last month, the General Court of the European Union agreed, saying the simple design wasn’t recognized widely enough across the EU to unmistakably represent the brand. This view has implications for large brands operating in the EU, where trademark rights are acquired through registrations, and not only through use, as is the case in the U.S. 

“The General Court notes, first of all, that the mark is not a pattern mark composed of a series of regularly repetitive elements, but an ordinary figurative mark,” the court wrote in its June 19 decision. 

Representatives for Adidas could not be reached for comment Friday. 

Generally, when an authority determines a design isn’t distinctive, companies have to show that it has at least “acquired distinctiveness,” in trademark terminology, which means that an otherwise unremarkable design has been used long and widely enough that consumers recognize the brand in it. 

In this case, the EU General Court said Adidas had shown evidence that those simple stripes at issue had perhaps developed that sort of distinctiveness in just a few of its member states, but that isn’t enough to secure an EU trademark.

“The question is whether the design looks to be like a decoration, or if consumers are going to look at the product and say this identifies the source of the goods,” said Rachel Hofstatter, of counsel at Steptoe & Johnson LLP, who advises clients on intellectual property. “So it really depends on whether consumers are going to perceive it as a trademark or just a decoration.” 

The EU ruling also reflects the sort of protections that exist there, especially for smaller brands using fairly generic designs on their products. 

Stripes or lines, for instance, are fairly common design elements in the packaging of various products, intellectual property experts said. 

“It’s a nice example of how a registration system can enforce limits on the scope of a trademark,” said Mark McKenna, a professor at the University of Notre Dame law school. “The scope of that mark should be controversial because of the number of other products it could potentially touch.” 

Adidas nonetheless has strong intellectual property advantages, which it has cemented through litigation, particularly in the U.S., and reaching settlements. The brand owns a number of trademarks in the U.S. for three, equally spaced parallel stripes applied in a number of directions and placements on its products. 

“That [EU] decision is a setback for Adidas in some ways, but doesn’t mean it doesn’t have other registered trademarks in its arsenal to enforce its brand,” said Olivera Medenica of Dunnington Bartholow & Miller LLP, who advises fashion brands on intellectual property. 

In the U.S., Adidas has battled companies including Skechers and Forever 21, with which it is still scuffling in Oregon federal court. But that kind of approach tends to be the case especially when a trademark is for a fairly basic design, which can raise the stakes of preserving it, attorneys said. 

For a large company like Adidas, holding onto simple stripe trademarks may mean having to continually establish it as the brand’s symbol. That often involves preventing similar designs from saturating the market for similar products, attorneys said.  

“They have a lot of sales, and if they don’t go out and enforce their mark, they could lose their trademark rights,” Hofstatter said. “And then there will be a flood of junior users trying to essentially copy what Adidas has done.”