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‘The brand with the three stripes’ – many people associate this claim with one of the best-known brands in the world. But can you trademark three parallel stripes that might go in any direction? The General Court of the European Union has just issued a new ruling confirming that the three stripes cannot be registered as a trademark in the EU.

In its ruling issued on 19 June 2019 the General Court upheld the decision made by the EUIPO (European Union Intellectual Property Office) in 2016. According to the ruling, adidas does not hold exclusive copyright covering the use of the three stripes in products in the European Union.

The distinctiveness factor: what makes a brand unmistakably recognisable?

The ruling marks a provisional high point in a year of ongoing legal conflicts. The EUIPO first registered the stripes in 2014 as an EU trademark for clothing, shoes and headwear belonging to adidas.

In its application, adidas described the logo as three parallel stripes, of equal width and with equal spacing, which may appear in any direction on a product.

However, the EUIPO revoked the registration in 2016 after the Belgian company Shoe Branding Europe BVBA lodged an objection. Their argument was that three stripes which can appear in any direction are not sufficiently distinctive.

Brand’s distinctiveness could not be proven throughout all of the EU

In its latest ruling, the General Court of the European Union has upheld the EUIPO’s decision and has rejected the claim from adidas: Firstly, the Court determined that the adidas stripes do not constitute a pattern consisting of regularly repeating elements, but instead represent a perfectly normal figurative mark. The Court ruled also found that the different forms of use, such as black stripes against a white background, could not be taken into account.

This supports the EUIPO decision, as well as the view that the logo cannot be trademarked for all of its possible positions and directions. adidas was not able to prove that its logo would be unambiguously recognised throughout all regions of the EU. The evidence presented related to only five of the member states. However, EU trademarks must be valid throughout the entire European Union.

In theory, adidas could appeal this ruling in a higher court, the European Court of Justice.

Click here to read the full ruling.

Picture © adidas

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