Adidas’ three-stripe trademark invalid

In 2014, Adidas registered a figurative trademark with the European Union Intellectual Property Office, consisting of “three parallel equidistant stripes of identical width, applied to the product in any direction”, reproduced in the application for registration as follows:



However, shortly after registration, a Belgian company applied for a declaration of invalidity on the grounds that the mark lacked distinctive character and the EUIPO had accepted the application, declaring the trademark invalid.

Adidas opposed that first decision, claiming that the mark had acquired distinctive character through use (so-called “secondary meaning”), in accordance with the provisions of Articles 7(3) and 59(2) of Regulation 2017/1001.

The EUIPO Board of Appeal, having examined the evidence produced by Adidas, found that it had not been established that the contested trademark had acquired distinctive character within the European Union, and that it was therefore invalid because it lacked distinctive character.

Adidas once again opposed this decision, but the European Union General Court, with its recent ruling of 16 June 2019, has now confirmed the decision of the EUIPO Second Board of Appeal and reaffirmed the invalidity of the trademark.

Adidas claimed to the EU Court that the EUIPO Board of Appeal had wrongly excluded numerous pieces of evidence in its assessment of the acquisition of distinctiveness of the mark, and that it had wrongly considered that there had been no proof of distinctiveness throughout the European Union.

With reference to the first point, the Court found that the EUIPO Board had correctly assessed the concept of “use of permissible variants”, noting that much of the evidence produced by Adidas in this regard was not applicable.

Permissible variants consist in the use by the proprietor of trademarks that are highly similar to the formally registered one, and which differ only in elements which do not lead to an alteration of the distinctive character.

As the Adidas mark is an extremely simple mark, composed of three equally spaced lines on a white background, any slight alteration would lead to the loss of distinctive character of the trademark. Therefore, many of the items of evidence, such as those depicting the same mark but in inverted colours or those depicting the stripes in an oblique version, were excluded for the purposes of assessment, since they were different from the registered trademark.

As far as the second point was concerned, Adidas claimed that the numerous proofs submitted should be evaluated overall and independently of the colour, length and angle of the stripes depicted, and that the evidence was sufficient to demonstrate that Adidas had acquired the ability to use the mark for the identification of their products throughout Europe.

However, regarding this aspect as well, the EU General Court held that the EUIPO Board had correctly decided to exclude most of the evidence for the reasons described above, and that the other evidence submitted, such as data on revenues, opinion polling, expenditures for marketing and advertising, was also insufficient to demonstrate that the figurative mark had acquired distinctiveness through use for the whole of the European Union.

The evidence submitted by Adidas was considered sufficient to determine the acquisition of “distinctive capacity” in only five of the EU Member States but not throughout the Union.

In accordance with what had already been decided by the EUIPO, the Court therefore dismissed Adidas’ appeal, upholding the previous decision concerning the invalidity of the three-stripe trademark.