Three stripes, two stripes and a risk of confusion

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The Court of Justice of the European Union (CJEU) has ruled in favour of adidas in its opposition to an application for registration of a Community trade mark brought by Shoe Branding Europe [1].

The competing marks are shown here – the familiar three-stripes of the adidas brand and Shoe Branding’s two stripes.

The opposition was dismissed by OHIM’s Opposition Division and by the Board of Appeal, both of which held that adidias’ three-stripe mark could enjoy protection only against identical or virtually identical reproductions and that, in the instant case, there were sufficient differences to dispel any likelihood of confusion (notably the number of stripes, the sloping and the positioning). adidas successfully appealed to the General Court, which found that the Board was wrong to say the marks were dissimilar and that, further, given that adidas had shown reputation in the three parallel stripes, this was sufficient to support both a finding of a likelihood of confusion and trade mark infringement.

Shoe Branding appealed to the CJEU, which wholly endorsed the General Court’s reasoning, finding that the differences between the two marks were of a minor nature and “that the difference between two and three stripes placed on a shoe was not sufficient to affect the similarities arising from the configuration of the signs at issue and from their position on the side of the shoe”. The CJEU held that minor differences between the marks at issue would not be noticed by a consumer having an average level of attention and would not influence the overall impression produced by the marks on account of the presence of wide sloping stripes on the side of the shoe.

The case has generated a significant amount of online commentary with some posters suggesting that no self-respecting teenager would confuse the adidas three-stripe mark with a two-stripe alternative and others arguing that the case comes close to conferring on adidas a monopoly in striped footwear.


[1] Case C-39615 P