How many stripes does it take to get hit by a trademark lawsuit from adidas? For Marc Jacobs, the answer is 4.
Everyone knows and recognizes adidas’ three-stripe design. According to adidas’ Complaint (which is the document you file to initiate a lawsuit), they’ve been using the three-stripe mark (which they refer to as the Three-Stripe Mark) on footwear sold in the US and worldwide at least since 1952.
Fashion design house Marc Jacobs, through its Marc by Marc Jacobs line, manufactured and sold clothing with…count them…four stripes.
See the image above? That’s an adidas product on the left. Three stripes. Marc Jacobs’ product is on the right. Four stripes.
In case you’re reading this on a device that, for some reason, isn’t showing you the photo, you can take my word for it. I counted the stripes myself.
So adidas is claiming that “In blatant disregard of adidas’s rights, Marc Jacobs has been designing, sourcing, manufacturing, distributing, marketing, promoting, offering for sale, and/or selling in interstate commerce apparel that bears confusingly similar imitations of adidas’s Three-Stripe Mark.”
adidas goes on:
On information and belief, Marc Jacobs had knowledge of adidas’s Three-Stripe Mark…
I’m guessing they did.
On further information and belief, Marc Jacobs intentionally adopted and used confusingly similar imitations of the Three-Stripe Mark knowing that they would mislead and deceive consumers into believing that the apparel was produced, authorized, or licensed by adidas, or that the apparel originated from adidas.
Well, that’s the question, isn’t it?
adidas set for several claims for “relief” (that’s what it’s called when you ask a court to correct a wrong that’s been done to you.) The first, of course, is Federal Trademark Infringement. My regular readers will know that this claim turns on the question of likelihood of confusion. Would a consumer likely be confused as to the source of Marc Jacobs’ clothing – meaning, would you see this on the street and think “That’s an adidas jacket” or not?
It’s not about whether or not the average consumer can count to four (that’s still up for debate). It’s more about pattern recognition. How closely do you examine each and every corporate trademark that you see on a daily basis? I’m guessing you don’t pay careful attention at all times. That’s why the standard is “likelihood” of confusion, not “definitely, for sure” confusion.
My suspicion is that a court would find that the average consumer would likely be confused between the two sets of goods in this case. But even if that’s not the case, adidas has another claim worth examining: Federal Trademark Dilution.
Trademark Dilution, which I’ve written about before (see this post, for example), is a claim that the defendant’s actions would diminish the goodwill embodied in the trademark, even if the defendant isn’t using the actual mark on their goods or services, and even if there’s no likelihood of confusion. Trademark Dilution rights are exclusively awarded to very famous trademarks. adidas’ Three-Stripe Mark certainly satisfies that requirement. From adidas’ Complaint:
Defendant is making use in commerce of marks that dilute and are likely to dilute the distinctiveness of adidas’s Three-Stripe Mark by eroding the public’s exclusive identification of the famous Three-Stripe Mark with adidas, tarnishing and degrading the positive associations and prestigious connotations of the Three-Stripe Mark, and otherwise lessening the capacity of the Three-Stripe Mark to identify and distinguish adidas’s goods.
This doesn’t look good for Marc Jacobs. My guess: they’ll quietly settle the case and that will be that.