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.

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Companies: adidas

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Comments on “Can You Own Stripes?”

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25 Comments
Mark Kenny (user link) says:

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 😉

Gabriel Tane (profile) says:

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.

hexjones says:

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.

What? says:

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!!!

known coward says:

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.

MLS (profile) says:

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.

CJ says:

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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