A few hours into this new year 2023, and also in view of the first major fashion events that already occupy a prominent place in the international calendar at the beginning of the year, the fashion world has come to set all eyes on the city of New York, but not this time to discover the novelties that are presented in the context of one of its very rare fashion weeks, but to analyze everything that ends up happening inside the Federal Court of the southern district of Manhattan. Tribunal before what this Tuesday, January 3, 2023 began what already promises to be the trial of the year, and which keeps the sports multinational Adidas and the American fashion designer and brand, owned by 85 percent from the Italian market Ermenegildo Zegna group, Thom Browne.
Trying to give us a brief background, as we anticipated from FashionUnited In early July 2021, Adidas filed a lawsuit against Thom Browne in New York court for infringement of its image rights as a registered trademark. According to the sports multinational, the company and the American designer have implemented this action by consciously replicating a series of stripes and motifs as company identity logos which, ultimately, do nothing more than “imitate the trademark of the three stripes of Adidas in a manner that is likely to cause consumer confusion and mislead the public as to the origin, endorsement, association or affiliation” between the two marks, as they elected to use at the time in their filing of the lawsuit filed in federal court in New York .
In the face of this alleged violation of the rights of its registered trademark, Adidas asks the Court, presided over by judge Jed Rakoff, that, in addition to the seizure of all the items subject to this violation and the ban on marketing new similar models, Thom Browne is sentenced for damages to pay a total of $867,225, an amount in which they estimate the amount that the American company would have had to pay as payment for the licenses if a partnership had been agreed between the two companies in these years; as well as another $7 million. That’s a figure Adidas values the millions in benefits the fashion company would come to reap for using those stripes in its fashion and footwear items that, they argue, are distinctive of Adidas. This being, in any case, a matter that the jury that will be charged with resolving this dispute between the sports multinational and the American luxury company will have to eventually determine, which should end up dragging on for about two weeks and which I have come to have statements in the courtroom, as witnesses, both from Rodrigo Bazán, executive director of Thom Browne since 2016, and from the designer himself, who remains the company’s creative director and who has already made an appearance, dressed from head to toe in a striking set of shorts, vest and blazer from his own fashion house, during the first session of the trial which took place this Tuesday.
Adidas: four bars that feed on the strength of your brand
Waiting to find out how this dispute will end up being resolved, the ruling of which could lead to serious image problems for a Thom Browne who finds one of his most easily recognizable distinctive traits in the strips of his drawings, during the first session of the It seems that neither neither side ended up deviating from the script they had previously presented in their responses and previous allegations after the lawsuit was filed.
Thus, on behalf of Adidas, whose legal representation is carried out, as reported by the American newspaper WWD, by R. Charles Henn Jr., of the Kilpatrick Townsend & Stockton law firm, he had to underline the permanent use that the sports company makes of its iconic three stripes in the United States since 1952. Underlining in this regard the almost 300 million dollars a year in advertising and the 3,100 million dollars in sales that Adidas collects, amounts referred only to footwear and apparel items with the presence of said reason. Completing his speech, as was done in the statement of presentation of the lawsuit, showing before the court different graphic material that supported the historical use that the company has made over the years of the three stripes as a synonym of its brand.
Beyond this first point, Henn continued his opening statement by recalling that the designer started using different motifs in the form of three stripes in his designs, in what has already led the sports firm, more than 10 years ago, to initiate an initial approach with its then executive director and designer, to agree that Browne could incorporate not 3 but 4 stripes in his designs. An emblem which, together with the red, white and blue striped “grosgrain”, has remained since then as an unaltered motif of the maison’s image, but which according to Adidas is hypothesizing a violation of its registered trademark rights, once the designer has begun to branch out into sports fashion and athleisure which they argue is natural for Adidas as a sports company, thus fueling “confusion” among consumers; further encouraged as the American firm began to establish close ties with business partners historically linked to Adidas. Partners such as the Cleveland Cavaliers NBA team or FC Barcelona, a team with which Thom Browne has been collaborating since 2018 by wearing his first rose off the field or with the development of that solidarity capsule collection launched in October 2020; or hire as a new ambassador a Messi who remained a brand ambassador for Adidas for 15 years.
With all of this in mind, Henn acknowledged that no consumer is more than likely to end up buying a Thom Browne item believing it to come from Adidas, primarily due to the different price ranges in which each of the two fashion companies move. Something that does not mean that it is hindering the possible future development of the brand and its entry into other areas of the fashion industry, in light of its recent collaborations with brands such as Gucci or Balenciaga; as well as benefiting from the work and values defended by Adidas throughout its years of history. A point that Henn supported before the Court with data from a recent survey of 2,400 consumers, among whom 26.9 percent thought that the Thom Browne 4-stripe emblem on one of its models actually responded to a image of an Adidas garment.
Thom Browne: A substantial difference in motivations, audiences and sectors
In response to the arguments presented by Adidas, Thom Browne, represented for his part in court by Robert T. Maldonado, the firm Wolf, Greenfield & Sacks, hid behind their allegations in the agreement reached with Adidas in 2007 to change their emblem to the current 4 bars they use in their designs. An action agreed at the time to avoid a tough, and costly, legal battle with the German company, from which they tried again in 2018 to force the company to stop using the 4-slash symbol, in a request against which even then the American fashion house did not give up.
Without for a moment questioning Adidas’ right to use and defend those three stripes that they use as emblems, but remembering that their inspiration is not in them but in the sports uniforms of university teams, from Thom Browne they sought to make it clear at all times to the members of the jury responsible for resolving this confrontation that a 10-year delay, from 2008 to 2018, to request the company to make a new change to its distinctive signs, in any case implies an unacceptable delay . Also assuming a delay in time that would make the use that Adidas is accepting of that logo valid without understanding, for an entire decade, that it could affect its business model and its brand.
In support of their thesis, from the American fashion house they added as part of their line of defense that three stripes, those of Adidas, cannot be understood as equal in any case, compared to four horizontal bars, those of Thom Browne. Also specifying in this regard that Adidas and Thom Browne do not compete for the same public nor do they operate in the same sectors of the fashion industry, and recalling that, in the event of having to stop using symbols which have been used to make the brand in the eyes of consumers, this would have a significant impact on the business model of the fashion house. Company whose turnover levels reached 264 million euros at the end of the Zegna Group’s last full year of 2021; company that participates as the majority and reference shareholder of the American fashion house after the acquisition of this majority stake in 2018.
