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  • Jean E. Palmieri

Adidas and Thom Browne Face Off in Court Over Use of Stripes

The German sports brand is seeking just under $8 million in damages and profits from the luxury label.

The use of four stripes, such as these in the Thom Browne football capsule, have put the designer at loggerheads with Adidas.

NEW YORK — The ongoing battle between Adidas and Thom Browne over the use of stripes on apparel and footwear kicked into high gear in the new year as the two brands faced off in Manhattan’s Southern District Court Tuesday in a trademark dispute case.

The trial in front of Judge Jed Rakoff began with attorneys on each side laying out their arguments to a jury, which will decide if the luxury designer infringed on Adidas’ trademark for three parallel stripes that have been a staple of the brand since the 1940s.

Adidas is seeking damages in the amount of $867,225 — the amount that it says the company would have received in licensing fees from Thom Browne Inc., if the two had worked together — as well as the $7 million in profits it alleges the American fashion brand made selling apparel and footwear with stripes, according to R. Charles Henn Jr. of Kilpatrick Townsend & Stockton LLP, who represents Adidas.

In his opening argument, Henn told the jurors that the trademarked three-stripe mark has been used in the U.S. since 1952 and Adidas spends some $300 million a year in advertising and brings in $3.1 billion in the sale of footwear and apparel bearing the motif. He showed examples of the logo being used vertically and horizontally in a range of colors on a variety of products including track pants, T-shirts, jackets and sneakers.

When Thom Browne started his brand, he used three stripes on some items such as sweaters to reference the varsity and collegiate sports uniforms that he has since become known for, as well as a red, white and blue grosgrain that is now a signature of the collection.

Henn argued that when Adidas discovered the use of the stripes, it approached Browne’s then chief executive officer and the designer agreed to change to a four-stripe detail. Even so, consumers still see it as three stripes, Henn said, citing a recent survey that was conducted where 2,400 consumers were shown images of Thom Browne striped product and 26.9 percent thought the product was made by Adidas.

The problem was exacerbated as the Thom Browne brand grew and expanded beyond its core of tailored clothing for men into a variety of sports-related products for men, women and children, including compression running gear, golf shirts, T-shirts, hoodies and other casual product, Henn said, in a “targeted attempt to grow its sportswear business.”

An Adidas shoe with the three stripes that it has trademarked.

Thom Browne also inked deals to dress FC Barcelona and its star athlete at the time, Lionel Messi, who had been an Adidas-sponsored ambassador for 15 years, as well as the Cleveland Cavaliers of the NBA where Adidas has had a “long relationship,” he said. The FC Barcelona deal was for off-the-field apparel, however, and the designer created custom tailored looks for the Cavaliers during the NBA Playoffs in 2018 that they wore in the tunnel as they arrived at the arena.

Although Henn said it is not likely that any consumer would purchase a high-end Thom Browne product thinking it was Adidas — a track pant from Adidas retails for around $55 while a Thom Browne version is more than $1,000 — it still led to confusion among shoppers.

In his rebuttal, Thom Browne’s attorney, Robert T. Maldonado of Wolf, Greenfield & Sacks P.C., said while the designer is not questioning Adidas’s trademark rights to the three stripes, it had agreed to change its motif to four stripes in 2007 so as not to get into an extended legal battle with the German-based “powerhouse” sports brand.

But the fact that Adidas did not object to Browne’s use of four stripes from 2008, when it made its debut during a fashion show, until 2018, when Adidas approached the Thom Browne team to negotiate a settlement, is the crux of the brand’s argument. “Thom Browne doesn’t agree that a decadelong delay is acceptable,” Maldonado said.

In addition, the attorney said Thom Browne does not believe consumers are confused by any similarities between the brands or that Adidas was harmed by the brand’s use of stripes.

Maldonado went on to introduce the designer, who was seated in the front of the courtroom in shorts and shrunken jacket, to the jury, saying that his outfit was not for their benefit, but is the “uniform” that he and his staff wear every day. He said the brand has now become known for the four parallel bars on the sleeves or pant legs as well as its grosgrain tag on the garments, which have been “branding elements” for the past decade or more.

He said Browne has been designing casual clothes such as cardigan sweaters and shorts for more than 15 years and introduced jersey sweatpants in 2009, drawing inspiration from varsity sports, not Adidas.

“Thom Browne does not compete with Adidas,” he said. “Thom Browne is a luxury designer and Adidas is a sports brand.”

Over the course of the trial, he said the brand will talk about the use of stripes in fashion and sports dating back “centuries,” and will also show that Adidas has no trademark for anything other than the three stripes that are almost always used vertically on its apparel and footwear while Browne’s are used horizontally.

He said that if the designer is forced to stop using the four bars or the grosgrain tags, it will have a significant impact on the business that has grown to 69 million euros in the third quarter of this year. Browne sold a majority stake in the brand to Ermenegildo Zegna in 2018.

“Three stripes are not the same as four horizontal bars,” Maldonado argued, adding that Adidas should have known years earlier that Browne was using stripes in his collection. “They fell asleep at the wheel and woke up too late,” he said.

The trial is expected to last about two weeks and Browne as well as the company’s CEO Rodrigo Bazan are both expected to testify.

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