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Earning your stripes – the perils of trademarking stripes

The tyre manufacturer Pirelli has recently been denied a trademark protection for a trademark consisting of stripes on the outer wall of a tyre. The European General court made the ruling on 4th July 2017.

Pirelli was not able to show that what they called a “position trademark” – the positioning of a pair of  stripes on the tyre – had acquired distinctiveness through use. This goes to the core of what a trade mark really is – an indicator of the product’s origin, something that people recognise as an indicator of the source of the product.  Pirelli’s mark, in the form that they defined it, looked like a simple decorative touch to the tyre and not the kind of thing that people see and assume means that it is a Pirelli tyre as opposed to any other manufacturer.  This assumption can sometimes be overcome with extensive consumer evidence, but not this time.  

We couldn’t possibly talk about trade mark protection for stripes without referencing sports retail giant Adidas, recognised the world over by its 3 stripe brand. Adidas has been involved in a number of trademark disputes over the years, amongst the most notable are cases against Wal-Mart, Polo Ralph Lauren, Abercrombie & Fitch, Kmart, Marca Mode and the Aldo Group. In 2003 case Adidas was unable to enforce its three-stripe trademark against a Dutch rival Fitnessworld Trading who issued its sports clothing with a double stripe. Although Adidas lost out on this occasion, its global persistence has certainly made everyone think twice about using a 3 stripe mark.

Luxury retailer Gucci has also entered the stripe wars. Gucci has a number of goods featuring a striped design, and claims that the stripes have been an “iconic code” of the fashion house for many decades.  In December 2016, it issued a cease and desist letter to Forever 21 insisting that the company stop using any "blue-red-blue stripes". Forever 21 responded with a trademark claim of its own and applied for exclusive use of a "parallel stripe design of alternating bands coloured blue-red-blue and green-red-green".

This isn't the first time Forever 21 has been engaged in a fight over stripes. In March of this year the label sued Adidas over the use of its three parallel stripes logos. What comes around goes around!

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