The Three Stripes Versus the World: Usurping Adidas in Trademark Dominance

Can trademark law make you change your stripes? What Adidas v. Thom Browne says about trademark rights on patterns when it comes to context, brand identity, and who would wear it on the red carpet.

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Sneakers by Athul Adhu on Pexels

What comes to mind when you hear the word “stripes”? A pattern on a wall, the ribbons of black on a tiger’s coat, or the 1981 film featuring Bill Murray?

What about two stripes? Or three?

“Three stripes” is nearly ubiquitous with Adidas, and for very good reason: the brand has identified with it since Adolf Dassler founded it in 1949, and Adidas has fought aggressively to protect its rights to the trademark ever since. While brands have the right to protect their trademarks from infringement, the case of Adidas blurs the line as to what extent a play of patterns might suffice as a trademark.

Most recently, Adidas brought an $8 million suit against New York fashion house Thom Browne for violating these trademark rights in 2021. Thom Browne, however, uses a “four-bar” pattern across their products. Adidas argues that the four-bar marks are so visually similar that consumers are likely to be confused about the two brands. To what extent, then, are stripes “owned” by Adidas? Does it matter if there are four stripes or only two? 

Of the numerous trademark suits that Adidas has brought against alleged competitors across the globe, Thom Browne was one of only a handful that chose not to settle before going to trial. This New York fashion house was almost as big of a brand to go up against the sportswear behemoth because it had the muscle to do so – both financially and factually. 

Firstly, Thom Browne’s use of the four-bar pattern is clearly distinct from Adidas’ three. When Adidas brought this suit in the U.K. courts for similar claims, the judge dismissed it because it was unlikely that the average consumer would confuse the Thom Browne stripes with that of Adidas. 

Secondly, despite both being major brands in the fashion industry, Thom Browne targets a completely different consumer market with substantially different pricing tiers from that of Adidas. With higher-end goods, consumers are much more likely to do their research before purchasing, thereby reducing the likelihood of confusion between similar logos or marks. In the context of brand identity, each brand is also distinct from the other. As a mass-market producer of sportswear, Adidas identifies with athletics, fitness, and streetwear. Thom Browne, on the other hand, focuses on tailored menswear with a fashion-forward take on unconventional suiting proportions.

Lastly, Thom Browne used his four-bar mark for years until Adidas brought this suit in 2021. It wasn’t until Thom Browne expanded into the sportswear and sneaker markets that Adidas decided to sue for trademark infringement. This could be deemed an effort of Thom Browne to bridge the market gap from the luxury market into sportswear to directly compete with Adidas. However, Thom Browne leaned in on the fact that the pricing tiers differed so drastically that the separation of each of the brands’ consumer markets persisted. It is considerable to note, though, that Adidas has collaborated with luxury brands that directly compete with Thom Browne, including Gucci, Prada, and Balenciaga, among others. When Thom Browne triumphs, would Adidas’ trademark protections continue to subside with its limited runs on goods that would directly compete with Thom Browne’s? Considering the implications of a negative outcome for Adidas in this case, might that disincentivize Adidas from continuing collaborations with other luxury fashion houses?

Evidently, the courts did not find favor with Adidas in their suit. If there was a single takeaway from the years-long suit, it would be that the visual similarity of a mark is not enough to impose trademark infringement. Stripes cannot be monopolized. Market differentiation, brand identities, and context are all factors that help determine whether consumer confusion persists enough to impose trademark infringement. Considering these nuances, implications for trademark law are forthcoming. What trademark rights would Adidas have against brands in the digital market if NFT's branded with three stripes cater to digital consumers? Or when thrifted Adidas goods branded with the three stripes are upcycled and resold by independent designers?
While Adidas has for many years aggressively chased after competitors for infringement on their three stripes, the pace of trademark law seems to have finally outrun them on their runway toward trademark dominance. Perhaps the greatest distinction between the two brands is that Thom Browne annually hosts grandiose fashion shows for Fashion Week, their niche sculptural gray suits are quintessential of the brand, and, as one IP firm has put it: “No one wore Adidas to the Met Gala this year.”