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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Filed Under: stripes, trademark
Companies: adidas

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  1. identicon
    MLS, 23 May 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:

    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, 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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