Can You Own Stripes?
from the striped-moron-in-a-hurry dept
We've discussed over and over again how companies misuse trademark law, believing that it gives them total ownership over the mark, rather than the fact that it's really designed to prevent consumer confusion. Joe Mullin has the details on the fact that shoemaker Adidas is suing a bunch of different companies for using stripes on shoes or other clothing. Adidas, famously, uses three parallel stripes on the side of its shoes as part of its brand -- and has a trademark on that design. That seems fair enough. But now it's won a $305 million ruling against a shoe retailer for daring to sell shoes that had two or four stripes. The company has also sued many other brands for various combinations of stripes and clothing. This is what happens when people talk about trademark as being "intellectual property." It gets them thinking that it creates total ownership over something as basic as stripes.
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Next time we'll learn that someone gets a patent on a
breathing style and start sueing everyone who breaths in a similar manner.
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If the shoes where black and the stripes white, yeeeaaaah he could confuse them with ADIDAS.
But It doesn't deter from the sheer riddiculousness of the suit.
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If it fails the moron-in-a-hurry test, then it's an obvious failure. But, even if it passes the moron-in-a-hurry test, the actual standard for validity is higher.
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Nike launches a 2 stripe product, adidas retaliates to protects its brand, courts have favored towards adidas, but this means 3-stripes is a logo and will fall foul of the IOC rulings so their brand won't be as noticeable during the games.
It's corporate business done in the courtroom rather than on the high street or R&D lab. Or just a willy-waving contest by the big boys ;-)
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Don't rush to judgement (like a moron in a hurry)
'cos if it's 2 or 4 stripes at a particular place on the shoe, at a particular angle - then yes, that would be confusing for the consumer, which is the whole point of trademark. Or no?
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Re: Don't rush to judgement (like a moron in a hurry)
Backing the wrong horse here, Mikey! They're clearly ripping off Adidas.
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Re: Re: Don't rush to judgement (like a moron in a hurry)
Without knowing all of the logos being grouped into this supposed infringement, it's hard to say how far into the realm of stupid this one goes.
I do think that Mike's general views about overuse of Trademark law is further validated by this case though. I know that Comment 10 by Brian is hyperbole and sarcastic, but there are plenty of ridiculous suits out there that make us think that way. And because of the sheer number of those suits, our first inclination is to assume this one is at that level too. Because the real morons in a hurry are the lawyers who take the ridiculous cases, the (possibly) legitimate ones are overlooked and lumped in with the rest.
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Re: Re: Don't rush to judgement (like a moron in a hurry)
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Horrible
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Personally
Perhaps K-Swiss can get adidas trademark voided?
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Prepared to be sued, bitches!
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There was more to this suit than just stripes
Maybe you people should find more facts before condemning decisions like this.
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What?
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Re: What?
but first you have to make a brand that is successful that someone would want to rip-off
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Was anyone confused
When i look at the china law page. 5 of the 7 shoes look fairly different than my memory of Addias shoes. Two are spot on (including stripe layout and design) except for the extra stripe.
If the trademark is on the 3 stripes though are the similarities enough to confuse a moron in a hurry? I think in Lots 3589 and 3601 the answer may be yes.
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Adidas v. Payless
http://www.scribd.com/word/full/2902167?access_key=key-ibz7bhngqt58wutj7yr
Note that a major factor in the amount awarded is based upon jury findings that Payless acted in a manner outside the bounds of "good faith". These findings account for about $300M of the damages awarded. Whether those damages hold up on appeal is an entirely different matter.
In answer to the question posed by the article's title, no...one cannot "own" three stripes. What the holder of a trademark can do is try to prevent similar marks from being used on similar goods that present a reasonably likelihood of confusion on the part of consumers exercising ordinary care and prudence when purchasing such goods.
On the more generic guestion of whether or not trademarks are "property", it does not admit to any easy yes/no answer. Yes, an attribute of "property" is that it gives the holder the right to exclude others from using same. Trademarks do seem to give a right to exclude, but only in the sense that the exclusionary right will be enforced when there is demonstrated a reasonable likelihood of confusion. On the other hand, and quite unlike patents and copyrights, trademarks are not "property" in the classical sense. Property can always be sold. A patent per se can be sold. A copyright per se can be sold. A trademark per se cannot be sold under US law. If it is "sold" as an adjunct to the sale of a business, with the underlying rationale being that a trademark represents a form of goodwill, and not a separate and independent piece of property.
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What the H%$#
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2 and 4 stripe shoes
Now that all legitimate shoe makers aren't going to put 2 and 4 stripes on their shoes, and people clearly want them, the moment is at hand!!
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I think in general reports of what Addidas is suing over are most likely misconstrued, and really they are suing over infringements on trainer designs which were protected by patent, but using the similar stripe designs to further argue intentional infringement and not that the company is trying to claim they own all stripes. Of course corporations practicing logic in action is rare anymore, so perhaps they think they own stripes, in which case some judge should hand them the smackdown.
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oversimplification
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