adidas v Nike: Trademark dispute striped sports pants

The three stripes are the trademark of adidas AG and have been known in Germany for decades in the form of three-striped sports pants. The decision of the Düsseldorf Higher Regional Court on the trademark dispute between adidas and Nike concerning the likelihood of confusion and the trademark stripes sports pants has therefore attracted attention.

Striped sports pants - trademark dispute adidas v Nike

adidas AG usually marks its sportswear with three vertical stripes running along the sides, which are the same width and positioned at the same distance from each other. In Germany, adidas AG protects this brand identification three-striped sports pants with a corresponding figurative mark (DE 39912356 in nice class 25 for "pants, in particular sports and leisure pants including shorts", registered since March 1999).

It also asserted this trademark against Nike when the U.S. sports manufacturer entered the German market with a similar design. At the request of adidas AG, the Düsseldorf Regional Court prohibited Nike Retail B.V. from, among other things, offering and advertising five specific pairs of sports pants with a (two or three) stripe pattern on the outer seam within Germany (LG Düsseldorf, 34 O 92/22). Nike Retail B.V. is appealing against this judgment.

Brand labeling on clothing

Whether a pattern on clothing, such as stripes on sports shorts, is perceived as an indication of the origin of the clothing or as a purely decorative element depends on the placement of the sign.

In the case of images, motifs, symbols and words on the front or back of clothing, it can be assumed that the relevant public will not generally see this as a measure of origin. This must be assessed on a case-by-case basis.

The situation is different in the case of signs on sewn-in labels on the inside of items of clothing. This is regularly to be seen as an indication of origin (see BGH GRUR 2018, 932 - #darferdas?). It is necessary to establish that the targeted public sees a reference to a specific manufacturer of the item of clothing in question in the specific type of use in question (BGH GRUR 2019, 1289 - Damen Hose MO).

The intended use by the user, in turn, is not relevant to the question of whether a sign is used as a trade mark. It only depends on whether a not insignificant part of the relevant public understands the sign as an indication of the origin of the goods from a specific business (BGH GRUR 1961, 280, 281 - Tosca).

Striped sports pants - adidas v Nike: likelihood of confusion?

The court of first instance (Düsseldorf Regional Court) not only granted adidas' application for injunctive relief, but also found that the injunction mark (the adidas stripe pattern) had increased distinctiveness due to its decades of use for sporting goods. Sports pants were protected or affected, so that the goods were identical. Taking into account the factors of increased distinctiveness and identity of goods, a direct likelihood of confusion could be affirmed.

Nike lodged an appeal and argued that the relevant public perception would not see any indication of their commercial origin in the stripe decorations of the challenged products. The applicant's labeling practice was not decisive for the question of whether the stripe decorations on the challenged pants were used as a trademark, as it did not correspond to the labeling practice of the entire industry.

Striped sports pants - adidas v Nike: decision of OLG Düsseldorf

It was undisputed that adidas AG marked its sportswear with three vertical stripes of the same width running along the sides and at the same distance from each other, the OLG Düsseldorf found. The relevant public is accustomed to this and sometimes sees it as a reference to adidas AG.

However, other manufacturers of sports and leisure clothing also use striped patterns along the outer seam as a decorative element, added the OLG Düsseldorf. Jeans pants or the uniform pants of the Bavarian police also have a stripe pattern along the side of the outer seam - the latter was also discussed in the oral hearing.
Therefore, both the specific stripe design and the other signs on the challenged pants had to be taken into account during the examination.

"Not every side stripe pattern on sports pants is to be prohibited", was the title of the Düsseldorf Higher Regional Court's press release on this decision (OLG Düsseldorf, 20 U 120/23, publshed 28.05.2024). In its examination of the specific design, it found that one of the five Nike models infringes the trademark rights of adidas AG (the LA Lakers Courtside Pants), a Nike model with three stripes and a "Swoosh" print that is not clearly visible.

The remaining four Nike models of striped sports pants were seen by the OLG Düsseldorf as not to infringe the trademarks and the judgment of the Düsseldorf Regional Court was set aside for these models. Three of Nike's striped sports pants had a large, clearly visible "Swoosh" print and only had two instead of three stripes. Another pair of pants (Paris St. Germain Pants) is designed with three parallel stripes on the outside and has a less conspicuous Air Jordan "Jumpman" print. However, due to their small distance from each other, the three stripes do not stand out in isolation, the court explained, but appear like a uniform decorative band. Furthermore, these three stripes are in the club colors of a soccer club. This design does not evoke any associations with the three-stripes marking of adidas AG, the court decided.

Nike is now allowed to market four of the five striped sports pants in Germany. The judgment is final.

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