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Monday, 12 May 2008

The stripes strike back

Adidas may not have been doing too well in making out infringement of its three stripes in the EU, but, according to Footwear News, they've more than made up for it in the US. A jury in Portland, Oregon has found that Payless' use of two stripes and four stripes constitutes trademark infringement, trademark dilution, injury to business reputation and unfair and deceptive trade practices. Moreover, they awarded $30.6 million in actual damages, $137 million in punitive damages (for willful infringement) and $137 million as an account of profits. It's rare for trade mark cases to come before a jury, and the defendant is considering an appeal.

The IPKat is puzzled. Why is it that the three stripes get relatively narrow protection in the EU (so much so that it seems that often the courts don't consider them an indication of origin) but get such wide protection in the US. Consumer perception isn't that different in the two jurisdictions is it?

STOP PRESS: You can view the full-text verdict at the Trademark Blog (here). Being a jury verdict, it's great for those who like pictures of trainers, but isn't much use for those who favour reasoned judgments.


Anonymous said...

Does the three stripes really get only narrow protection in the EU? I'm not aware of a case where a court has decided that the mark is not an indicator of origin...

Jeremy said...

The question isn't one of whether the mark is viewed as an indicator of origin, so much as what signs and emblems can be used by others without being regarded as infringements.

Anonymous said...

Just because trade marks are all about consumer perception doesn't mean that (in fact,God forbid) they should be decided by consumers (juries).

By the way, has anyone thought to argue that (as I heard an eminent barrister recently doing in an informal setting)that the stripes should be viewed in 'negative'; ie that in your illustration there are two (black against white background) and not three stripes ! Pretty darn clever, eh ? Perhaps that's what fooled the good jury of Portland.

Dr Schoen said...

It's called subservience to the property-owning classes. It may change once Bush has gone.

Gobhicks said...

Is "la marque aux trois bandes" so difficult to understand?? - oh, it was a US jury (no doubt made up exclusively of entrepreneurs)

Anonymous said...

Is Adidas going to face a problem at the Olympics (TM) where the advertising space on competitor's clothes is severely limited? Will they be arguing that the "three stripes" is not a trade mark and therefore not advertising? Time will tell.

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