Adidas v Thom Browne: Court of Appeal upholds invalidity of trade marks featuring three stripes

The Court of Appeal has dismissed Adidas AG’s appeal in a high-profile trade mark dispute against fashion brand Thom Browne, confirming the High Court’s decision that six of Adidas’s UK trade marks featuring three parallel stripes on garments are invalid due to lack of clarity and precision in their representations [2025] EWCA Civ 1340.

Background

The case centred around 16 Adidas trade marks registered in the UK. Thom Browne sought their invalidation (or, alternatively, revocation) on grounds of:

• Lack of registrability under trade mark law

• Lack of distinctive character

• Lack of genuine use

At first instance ([2024] EWHC 2990 (Ch)), the High Court held that eight trade marks were invalid due to registrability issues, while the remaining claims were dismissed. Adidas’s counterclaim for trade mark infringement and passing off was also rejected.

Adidas appealed the finding that six of its three-stripe marks were invalid, particularly challenging the interpretation of the marks as lacking clarity and precision.

The six trade marks at issue

The marks consisted of three parallel stripes applied to various parts of garments – specifically, the sleeves, sides, or legs of items such as tracksuits, vests and shorts. Each mark featured both:

• A pictorial representation (an image showing stripe placement), and

• A written description, which often referred to stripes “running along one third or more” of a particular garment feature.

The dispute turned on whether these combinations met the legal requirements for registrability, specifically:

1. Whether the subject matter constituted a “sign” under the Trade Marks Act 1994 and the EU Directive it implements, and

2. Whether the representation of that sign was clear, precise, self-contained, durable, intelligible and objective.

The court’s decision

Lord Justice Arnold, delivering the lead judgment, concluded that the trial judge made no legal or evaluative error in finding the six marks invalid. In particular, he agreed with the High Court that:

• The pictorial representations and written descriptions did not identify a single, specific sign, but rather encompassed a range of variable stripe placements and lengths, none of which were clearly or uniformly defined.

• The phrase “one third or more” in the descriptions created too much uncertainty and variation, particularly as to the starting and ending points and positioning of the stripes.

• The result was that the marks lacked clarity and precision, creating an unfair competitive advantage by effectively granting Adidas a broad monopoly over a concept (three stripes on garments) rather than a specific sign.

The Court also dismissed Adidas’s argument that the judge failed to consider whether the public would still perceive the variations as the “same mark”. The judge had correctly assessed that the variability undermined the function of the marks as indicators of origin.

The Court rejected all four of Adidas’s grounds of appeal, namely:

1. Misapplication of Dyson case law regarding ‘unrepresented signs’

2. Misinterpretation of the scope of the trade marks

3. Confusion between clarity of wording and clarity of subject matter

4. Overemphasis on visual variation without considering consumer perception

Impact of parallel EU and Dutch proceedings

The Court noted that similar marks were upheld by the EUIPO Cancellation Division and the Dutch court, but found this did not affect the outcome in the UK proceedings. In particular, the EUIPO’s Board of Appeal disagreed with its own Cancellation Division, and the decisions remain under appeal in the EU courts.

What does this mean?

This case highlights the stringent representational requirements for trade marks in the UK, especially position marks. It reinforces the principle that trade marks must be sufficiently clear and precise so that both the public and competitors can understand exactly what is protected.

In other words, position marks are highly valuable for businesses, particularly those in the fashion industry, therefore there is a high barrier to obtaining a mark and a great deal of care needs to be taken at the application stage.

Key takeaways:

• Vague or flexible written descriptions, even when paired with illustrative images, may render a trade mark invalid.

• When applying for trade marks, especially position marks on clothing, consistency between the written description and the pictorial representation is essential.

• The decision confirms that UK courts will scrutinise trade marks that seek to claim broad conceptual features rather than specific visual signs, particularly in the fashion and apparel sectors.

To find out more about the issues raised in this blog contact Rosie Burbidge.