The case: adidas labels almost all its goods with signs consisting of three stripes. How these stripes are depicted varies. In order to extend its three-stripe protection with a single trade mark, adidas registered the trade mark reproduced below as a European Union trade mark for clothing, footwear and headgear in December 2013.

To its description, the particular feature of the mark was that it consists of ‘three parallel equidistant stripes of identical width, applied on a product in any direction’.

adidas then wanted to acquire a so-called pattern mark.  Such a mark consists exclusively of a set of elements which are repeated regularly, comparable to the Burberry pattern or the Louis Vuitton pattern.

adidas’ claim stated that the graphic representation of the mark at issue showed a pattern consisting of three parallel equidistant stripes, regardless of the length of the stripes or the direction in which they are cut or applied.  If this had been successfully argued, adidas would have obtained trade mark protection for three parallel equidistant stripes of any length and in any direction.  The trade mark was initially registered on the European trade mark register without any problems.  However, a competitor subsequently applied for its cancellation on the ground that the mark was devoid of any distinctive character.  The Court of the European Union, as well as the EUIPO, proved them right.

The judges initially held that adidas had failed to comply with the requirements for a pattern mark, because the description of the mark did not indicate that it consisted of a set of elements which are repeated regularly. In addition, there was no evidence that the length of the stripes could be modified or that the stripes could be cut or applied at a slanted angle.  Thus, the attempt to extend protection by obtaining a broad pattern mark had already failed for formal reasons.  

The court confirmed that the trade mark in question could only be regarded as a registration of a figurative mark. Unlike the pattern mark, the protection of a figurative mark is limited to the specific image, Court of Justice of the European Union of 19.06.2019, T-307/17.

Ultimately, the three stripes could not be registered as a figurative mark, because adidas could not prove their distinctiveness. For more detail on this case, see the following article:

Trademark protection for simple signs – adidas

Learnings: If an application for a pattern mark is to be filed, this must be clearly stated in the application for registration of the mark and what the properties of the pattern are. A pattern mark consisting of a simple design must also be distinctive. The distinctive character of a very simple pattern mark may be demonstrated by use in identical and broadly identical form. It is not a simple matter to fulfil such requirements.