It may seem strange that a sportwear company might be able to prevent anyone from simply selling something with three stripes on it. One apparel retailer claims to find it strange, and two large brands are currently in a high-stakes legal standoff over the question.
Their trademark dispute illustrates what trademarks really are and why governments grant companies the right to create and defend trademarks as their distinctive property.
How could anyone think stripes might be a trademark?
Whether it’s a name, word, shape, sound or virtually anything else, a trademark is a way for someone who makes a product to communicate to you that they are behind that product.
It’s said that even before the Middle Ages, the makers of pots, swords and other object stamped their work so others would know their origin. A German beer manufacturer claims to have been using an image of a lion as its trademark since the 1300s.
Distinctiveness is key
The essence of a trademark is that it can be anything whatsoever so long as it “means” a certain business. It’s no wonder that trademarks can, at least potentially, seem extremely arbitrary. What do camels have to do with cigarettes? At one time, anybody could say “m’m m’m good” whenever they wanted, while today they must be very careful about it.
It would make no sense for everyone to use the same trademark, since it wouldn’t distinguish any product as having to do with one company and would suggest that all companies are the same. Distinctiveness is the key to trademarks.
Creating a trademark from scratch can be expensive
Adidas has claimed that its stripes are distinctive of the German sportwear giant known since 1949 as Adidas. Its complaint to the court says it has spent billions building its stripes into a trademark though “frequent sponsorship of athletic tournaments and organizations, as well as professional athletes and collegiate sports teams … and musical artists.”
It can take a lot of time and money to turn a swoosh or a couple of arches or a few stripes into trademarks legally protected against unauthorized use. Whether Adidas is right or wrong in this case, the suit illustrates that trademarks continue to guard against a competitor unfairly drawing a company’s hard-earned customers.