Trademarking Big Corporates Clothing Brands

The Dutch Supreme Court has rejected an appeal by adidas, ending a decades-long dispute with H&M Hennes & Mauritz over its use of a two-stripe mark.

The dispute stretches back to 1997 and focuses on H&M’s use of a two-stripe mark. adidas had previously been the beneficiary of victories based on its three stripe marks at the District Court of The Hague in November 2017 and the Arnhem-Leeuwarden Court of Appeal in January 2018. For its part, H&M argued that such a “blanket ban on the use of two stripes was an unreasonable restriction” and the dispute continued at appeals level.

On 28 January 2020, the Court of Appeal of The Hague ruled that H&M can use a specific two-stripe sign (as part of its ‘Work Out’ clothing line) on its sports clothing without infringing the three-stripe trademark of adidas. That decision hinged on the scope of protection of adidas’ three-stripe mark, which is defined by the spacing between the stripes in relation to the width of the stripes. H&M’s sports clothing was deemed to fall outside the scope of adidas’ infringement claim, because the spacing between the two stripes was smaller to a relevant extent than the stripes themselves.

Specifically, adidas opposed the use of a motif consisting of two vertical and parallel stripes of equal width, placed at equal distance from each other, where the spacing between the stripes was visually more or less equal to the width of the stripes. The Court of Appeal of The Hague held that the condition that the spacing between the stripes was visually more or less equal to the width of the stripes was not met.