In February 2020, New York-based fashion brand Thom Browne filed three trade mark applications registering intent to use a striped design on footwear. Since, it has met opposition from renowned brands Adidas and Tommy Hilfiger.
The design in question, although consisting of ‘five parallel stripes, with the centre stripe in white, the left adjacent stripe in red, the right adjacent stripe in blue, and with the two outermost stripes in white, with the two outermost stripes being narrower than the other three stripes’, arguably gives the appearance of consisting of three stripes, provoking Adidas to file a notice of opposition on December 14th to the US Patent and Trade Mark Office’s Trade mark trial and appeal board (TTAB) to deny Thom Browne’s registration.
Adidas, who have previously challenged similar striped marks presented by brands including Tesla and Barcelona Football Club, claimed that their mark has been used for over 65 years and has gained an established reputation exceeding that of Thom Browne, a company less than 20 years old. Furthermore, Adidas claimed their constant use of their three-striped trademark on fashion apparel has gained sufficient familiarity with consumers and, hence, the mark proposed by Thom Browne is likely to present confusion that their products are affiliated with Adidas due to the overall similarity and ‘commercial impression’.
In addition to this potential confusion, Adidas also stated that the proposed mark has potential to dilute the distinctiveness of their brand and their exclusive association with the striped mark.
Tommy Hilfiger also filed an opposition on the 15th of December to the TTAB for the same marks as those disputed by Adidas, as well as an additional proposed striped mark to be used on a fragrance bottle. Tommy Hilfiger Licensing LLC stated they maintain rights to ‘a device compromising red, white and blue stripes’, further arguing Thom Browne’s marks to be merely descriptive and hence not liable for registration regardless.
Fashion brand K-Swiss was also named as a potential opponent in the Summer of 2020 after requesting for extensions on Thom Browne’s initial request, alongside Adidas and Hilfiger, however, it is unclear whether they will file an opposition of their own.
By Ellie King, student from Southampton Solent University
