Trademarks involving words or elements common in an industry are generally the most challenging trademarks to protect and enforce. This can be especially true in the fashion industry, where common features such as colors, designs, style, and patterns often play a crucial role in conveying brand identity and exclusivity. While combinations of these kinds of common elements may be capable of serving as trademarks, such trademarks can be challenging to register and to protect because the owner must show more to establish their distinctiveness. Even then, such marks are entitled to a narrower ambit of protection against marks made up of even quite similar elements. The dispute between fashion powerhouses Adidas and Thom Browne over stripe designs reveals the intricacies of brand protection and the scope of trademarks based on common elements especially within the fashion world.
In June 2021, more than a decade after it first sent a cease-and-desist letter complaining about Thom Browne’s stripes design renowned sportswear giant, Adidas, filed suit against the luxury fashion brand in the U.S. District Court for the Southern District of New York, alleging trademark infringement, unfair competition, and dilution. The dispute centered on a venerable, inarguably simple, and widely used design: stripes. Specifically, Adidas objected to Thom Browne’s use of a four-stripe design on its clothing and footwear, which Adidas alleged bore a striking resemblance to its iconic three-stripe trademark. Adidas has been aggressive about protecting its three-stripe design; it holds a total of 24 U.S. federal registered trademark registrations for its three-stripe mark. In its complaint, Adidas also sought to enjoin Thom Browne from using, advertising, or selling apparel with the challenged four-stripe design.
