This is a straightforward case of an operational accident. Reuters reports that according to ‘a source close to the company’, adidas was concerned that the general public would think the move was criticism of the Black Lives Matter mission. It sounds like a logical explanation. An overzealous American corporate lawyer applying standard adidas-procedure a little too vigorously. Namely: object to any clothing brand that uses 3 parallel stripes.
Taking action is important
In itself, adidas needs to act against new stripe trademarks. After all, it is quite a challenge to maintain your trademark rights to a simple geometric figure such as three parallel stripes. If adidas lets other clothing brands get away with too much using those stripes, the company risks having its own stripe brand become commonplace, and that will weaken the trademark rights. In the worst case, they could even lose rights altogether. This is why adidas tries to keep the trademark register ‘clean’; in this case, it has every reason to stand up for itself. The point here is that you must look at who you are targeting: competitors like H&M or Thom Browne require a different approach than Black Lives Matter.
Based on what rights?
But suppose adidas had pushed ahead with its opposition, could the company stop Black Lives Matter’s stripe trademark? First, let’s look at the basis of the opposition: many registrations of stripes trademarks applied to clothing and shoes. Interestingly, they have even deployed a trademark registration of the phrase The Brand With The Three Stripes.
With all its trademarks, adidas had a good chance of succeeding legally against the registration and use of a yellow three-stripe on clothing. Although the adidas three-stripe is a basic and simple sign, the company has made it a world-famous and distinctive brand in 70 years. Of course, the scope of protection of the trademark has its limitations: for example, it’s difficult to take action against the use of two or four stripes. That’s why adidas falls flat on its face occasionally in the battle of the three stripes.
However, I believe this new Black Lives Matter trademark comes very close to the adidas design. Therefore there is a risk of confusion. When Black Lives Matter launches clothing with this yellow three-stripe, we will inevitably think of adidas. Even if you add the text Black Lives Matter, it still suggests that adidas has some involvement. Is adidas sponsoring the clothing?
However, adidas’ decision not to act in this case is understandable. The social media circus that can arise when a commercial heavyweight like adidas dares to take legal action against an activist organisation fighting against racism and for the rights of black people, can have disastrous consequences for the adidas brand.
Still, it must be frustrating for adidas that it can’t press ahead with the necessary defensive action of its trademark out of fear of negative backlash. Especially as the new trademark in the register can harm the adidas brand. If adidas challenges another company about using stripes soon, they will deflect and ask “why can they use it and we can’t?”.
I am also surprised that Black Lives Matter is even trying to register this trademark for clothing. There is of course nothing against the organisation using a three-stripe logo. The organisation’s website shows the trademark use and that has a strong look. Adidas won’t object to that either. But do you need to turn that logo into a clothing brand? Didn’t anyone stop to think that this could raise eyebrows over at adidas? We’ll never know. But for now, the US registration application of Black Lives Matter is not being hindered.