Can You Own Stripes?

from the striped-moron-in-a-hurry dept

We've discussed over and over again how companies misuse trademark law, believing that it gives them total ownership over the mark, rather than the fact that it's really designed to prevent consumer confusion. Joe Mullin has the details on the fact that shoemaker Adidas is suing a bunch of different companies for using stripes on shoes or other clothing. Adidas, famously, uses three parallel stripes on the side of its shoes as part of its brand -- and has a trademark on that design. That seems fair enough. But now it's won a $305 million ruling against a shoe retailer for daring to sell shoes that had two or four stripes. The company has also sued many other brands for various combinations of stripes and clothing. This is what happens when people talk about trademark as being "intellectual property." It gets them thinking that it creates total ownership over something as basic as stripes.


Reader Comments (rss)

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  •  
    identicon
    Anjum Kaiser, May 22nd, 2008 @ 11:47pm

    Patent laws are pathetic.
    Next time we'll learn that someone gets a patent on a
    breathing style and start sueing everyone who breaths in a similar manner.

     

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    KMP, May 23rd, 2008 @ 12:14am

    Moron in a hurry -

    If the shoes where black and the stripes white, yeeeaaaah he could confuse them with ADIDAS.

    But It doesn't deter from the sheer riddiculousness of the suit.

     

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      jonnyq, May 23rd, 2008 @ 6:41am

      Re:

      The moron in a hurry test is just one test for failure.

      If it fails the moron-in-a-hurry test, then it's an obvious failure. But, even if it passes the moron-in-a-hurry test, the actual standard for validity is higher.

       

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    Mark Kenny, May 23rd, 2008 @ 12:22am

    During the Olympics Nike had to reduce the size of the swoosh logo because corporate branding could only be so big. adidas were happy to shrink their logo because they cover the sides and tops of their product with three stripes.

    Nike launches a 2 stripe product, adidas retaliates to protects its brand, courts have favored towards adidas, but this means 3-stripes is a logo and will fall foul of the IOC rulings so their brand won't be as noticeable during the games.

    It's corporate business done in the courtroom rather than on the high street or R&D lab. Or just a willy-waving contest by the big boys ;-)

     

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    Sean, May 23rd, 2008 @ 12:40am

    All Day I Dream About Suing.

     

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    Sean, May 23rd, 2008 @ 1:19am

    Don't rush to judgement (like a moron in a hurry)

    Is there any images of the shoes at issue?

    'cos if it's 2 or 4 stripes at a particular place on the shoe, at a particular angle - then yes, that would be confusing for the consumer, which is the whole point of trademark. Or no?

     

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      Sean, May 23rd, 2008 @ 1:29am

      Re: Don't rush to judgement (like a moron in a hurry)

      Crikey, quick search later turns up this blog - the guy actually says that he bought a pair of knock-off blues and whites... and there's an excellent image on the Chinalawblog

      Backing the wrong horse here, Mikey! They're clearly ripping off Adidas.

       

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        Sean, May 23rd, 2008 @ 1:31am

        Re: Re: Don't rush to judgement (like a moron in a hurry)

        Talk about morons in a hurry, I forgot the link: davewknight I really should learn to use preview...

         

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        Gabriel Tane (profile), May 23rd, 2008 @ 4:49am

        Re: Re: Don't rush to judgement (like a moron in a hurry)

        Yeah, I'm with Sean on this one. It looks like for the most part, the suit is about other companies using stripes that really are "too similar" to Adidas' logo. Not being a shoe fanatic, if I were to try to go out and buy shoes (for someone else, I don't care about brand myself), I could see myself thinking "sweet! wholesale prices for the same shoe!" because they look confusingly alike.

        Without knowing all of the logos being grouped into this supposed infringement, it's hard to say how far into the realm of stupid this one goes.

        I do think that Mike's general views about overuse of Trademark law is further validated by this case though. I know that Comment 10 by Brian is hyperbole and sarcastic, but there are plenty of ridiculous suits out there that make us think that way. And because of the sheer number of those suits, our first inclination is to assume this one is at that level too. Because the real morons in a hurry are the lawyers who take the ridiculous cases, the (possibly) legitimate ones are overlooked and lumped in with the rest.

         

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        Master Po, May 23rd, 2008 @ 10:31am

        Re: Re: Don't rush to judgement (like a moron in a hurry)

        Thanks for the link over to China Law Blog's post on this. I laughed my head off. Who knew a lawyer could be so funny?

         

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    www.custompcmax.com, May 23rd, 2008 @ 3:28am

    Horrible

    This is absolutely crazy to win a settlement like that, IF it is based purely off of the fact these shoes have stripes. But, if they are the shoes that Sean posted in his comment, then I can see why they won. But, there are more similarities than just stripes with those shoes.

     

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    some old guy, May 23rd, 2008 @ 3:45am

    Personally

    I think K-Swiss should turn around and fucking STOMP Adidas in court, as Adidas uses 3/5 of K-Swiss's stripes. (same angle as well there)

    Perhaps K-Swiss can get adidas trademark voided?

     

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    Brian, May 23rd, 2008 @ 4:16am

    I claim the colors: red, blue, green as well as any derivation of these colors.

    Prepared to be sued, bitches!

     

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    hexjones, May 23rd, 2008 @ 7:27am

    There was more to this suit than just stripes

    The Payless shoes in question had a lot more to do with Adidas designs than just stripes. The shoe designs were VERY close to the Adidas shoe with the exception of an additional (or subtracted?) stripe.

    Maybe you people should find more facts before condemning decisions like this.

     

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    What?, May 23rd, 2008 @ 7:40am

    What?

    This is retarded... i can understand them using 3 black and white stripes... but anything different from that is... well... DIFFERENT!! They don't own the concept of three (or two, or four) stripes... this isn't something that can have an owner. I should patent/copywright/trademark the circle... and sue everyone who thinks they have the right to draw MY circle!!!

     

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      hexjones, May 23rd, 2008 @ 7:45am

      Re: What?

      you go right ahead and do that, especially if that someone else rips off the REST of your design AND uses a variation of your circle. you will probably win

      but first you have to make a brand that is successful that someone would want to rip-off

       

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    known coward, May 23rd, 2008 @ 7:51am

    Was anyone confused

    by the shoes in the store, were buyers thinking they were buying addias?

    When i look at the china law page. 5 of the 7 shoes look fairly different than my memory of Addias shoes. Two are spot on (including stripe layout and design) except for the extra stripe.

    If the trademark is on the 3 stripes though are the similarities enough to confuse a moron in a hurry? I think in Lots 3589 and 3601 the answer may be yes.

     

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    MLS, May 23rd, 2008 @ 8:33am

    Adidas v. Payless

    One can view the products judged to infringe Adidas' trademark by taking a look at the jury verdict form posted at:

    http://www.scribd.com/word/full/2902167?access_key=key-ibz7bhngqt58wutj7yr

    Note that a major factor in the amount awarded is based upon jury findings that Payless acted in a manner outside the bounds of "good faith". These findings account for about $300M of the damages awarded. Whether those damages hold up on appeal is an entirely different matter.

    In answer to the question posed by the article's title, no...one cannot "own" three stripes. What the holder of a trademark can do is try to prevent similar marks from being used on similar goods that present a reasonably likelihood of confusion on the part of consumers exercising ordinary care and prudence when purchasing such goods.

    On the more generic guestion of whether or not trademarks are "property", it does not admit to any easy yes/no answer. Yes, an attribute of "property" is that it gives the holder the right to exclude others from using same. Trademarks do seem to give a right to exclude, but only in the sense that the exclusionary right will be enforced when there is demonstrated a reasonable likelihood of confusion. On the other hand, and quite unlike patents and copyrights, trademarks are not "property" in the classical sense. Property can always be sold. A patent per se can be sold. A copyright per se can be sold. A trademark per se cannot be sold under US law. If it is "sold" as an adjunct to the sale of a business, with the underlying rationale being that a trademark represents a form of goodwill, and not a separate and independent piece of property.

     

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    Rob, May 23rd, 2008 @ 9:02am

    What the H%$#

    Who is going to represent the Zebras?

     

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    suckerpunch-tm, May 23rd, 2008 @ 10:33am

    2 and 4 stripe shoes

    Well if you ever wanted to enter the black market knock-off shoe business, this is the time to do it!
    Now that all legitimate shoe makers aren't going to put 2 and 4 stripes on their shoes, and people clearly want them, the moment is at hand!!

     

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    CJ, May 23rd, 2008 @ 11:38am

    I question which patent/trademarks they can and are suing for. If I sell a widget whose unique design I have protected and I have trademarked a letter m in the spartan typeface as my distint brand. And someone starts selling knockoff widgets with a letter n in spartan or a letter m in copperplate it seems stupid to believe that becasue I have a trademark on a spartan m that I should therefore by default also own rights on every other letter in that typeface or over the letter M in any other typeface, and thus I should not be able to expect to successfully litigate for brand infringement over the use of a trademark that might be similar, but is not mine. However if that knock off widget copied my protected desgin for the widget itself I could sue on those grounds and should expect to be able to point to the use of the fairly similar to my trademark mark used on the widget to lend a great deal of credence to my allegations that the knock off was not only infringing upon my widget design, but was specifically attempting to do financial damage to my sales of the spartan m widget.

    I think in general reports of what Addidas is suing over are most likely misconstrued, and really they are suing over infringements on trainer designs which were protected by patent, but using the similar stripe designs to further argue intentional infringement and not that the company is trying to claim they own all stripes. Of course corporations practicing logic in action is rare anymore, so perhaps they think they own stripes, in which case some judge should hand them the smackdown.

     

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    common_sense, May 24th, 2008 @ 6:03am

    oversimplification

    Once again, Mike oversimplifies the situation.. neglecting to mention the details and ignoring the burden the owners of intellectual property have in maintaining that legally recognized ownership.

     

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