Everyone recognises the three stripes. That was not the question. The question was whether Adidas could prove, with evidence, that consumers across the whole European Union recognise them — and on the material filed, it could not.
The earlier battle
The 2019 decision was not the first against the German sportswear company. In 2003, Adidas lost to the Dutch company Fitness World, which used a two-stripe design on its products. Adidas argued the two-stripe motif was suspiciously similar to its three stripes and that continued use would confuse the public.
The court disagreed, holding that Fitness World’s motif was used for decorative purposes, and that the proprietor of a mark with a reputation cannot prevent use of a similar sign serving a specific purpose — here, decoration.
Registration and annulment
The mark at issue was registered in 2014 by the European Union Intellectual Property Office (EUIPO).
In 2016, EUIPO annulled it, on an application for a declaration of invalidity by the Belgian undertaking Shoe Branding Europe BVBA, which argued the mark should never have been registered as it was devoid of distinctive character.
Upholding the annulment, the General Court made three findings:
- the mark is not a pattern mark but an ordinary figurative mark — meaning it is protected as the specific image registered, not as a repeatable design applied at any scale;
- the various forms of use relied on failed to respect the essential characteristics of the mark as registered, namely black stripes against a white background; and
- Adidas could not establish acquired distinctive character throughout the territory of the European Union, because the evidence produced related to only five member states and could not be extrapolated across all twenty-eight.
Distinctive enough?
The judgment surprised many, given the global fame of the brand. But the takeaways are narrower than the headlines suggested.
The mark was inherently non-distinctive, so everything turned on acquired distinctiveness through use — and for an EU trade mark, that must be shown across the Union as a whole, not in the member states where the brand happens to have the best records. Evidence from five states, however compelling, does not carry the other twenty-three.
The pattern mark point compounded it. Because the registration was treated as an ordinary figurative mark, use in other colour combinations, orientations or proportions did not count as use of that mark. Adidas’s real-world use is enormously varied; the registration was narrow. The mismatch between the two is what sank the evidence.
So the question was never whether the mark was distinctive, but whether it was “distinctive enough” — and whether the proof matched the registration.
What followed: Adidas appealed, and the Court of Justice dismissed the appeal, leaving the General Court’s ruling standing. It is worth being clear about scope, though: this concerned one particular EU registration, not the entirety of Adidas’s three-stripe portfolio. The company continues to hold and enforce other registrations for three-stripe marks, and litigation with Shoe Branding over related marks has continued in both directions.
The practical lesson
For anyone holding a mark that is inherently weak — a simple device, a colour, a basic figurative element — two disciplines follow from this case:
- Register what you actually use, in the variations you actually use. A registration that captures one frozen rendering of a mark used flexibly is difficult to defend.
- Collect evidence territory by territory, continuously. Acquired distinctiveness is proved with sales data, advertising spend, surveys and market share — assembled per jurisdiction, not as a general assertion of fame.
The takeaways
- Fame is not proof — acquired distinctiveness must be evidenced across the whole EU.
- Figurative marks are protected as registered — not as a scalable pattern.
- Use in other forms may not count as use of the registered mark.
- The decision concerned one registration, not every three-stripe mark Adidas owns.
Frequently asked questions
Why was the Adidas three-stripe mark annulled? Because it was inherently non-distinctive and the evidence of acquired distinctiveness covered only five EU member states, which could not be extrapolated to the whole Union.
Does this mean Adidas lost its three stripes entirely? No — the decision concerned one particular EU registration. Adidas holds and enforces other three-stripe registrations.
What is the difference between a figurative mark and a pattern mark? A figurative mark is protected as the specific image registered; a pattern mark covers a repeatable design. The court held this registration was the former.
How is acquired distinctiveness proved in the EU? Through evidence across the whole Union — sales, advertising, surveys and market share, assembled jurisdiction by jurisdiction rather than asserted generally.