In May, adidas filed another trademark infringement complaint, this time against Lands’ End. A comparison of the shoes alleged to infringe in adidas’s complaint.
See complaint here. Lands’ End’s skate shoe falls within adidas’s 2 to 4 stripe zone of trademark protectability (adidas won a $300 million verdict against Payless for a similar shoe), but I’m not convinced that the “stripes” on the Lands’ End Trekker shoes are actual source identifying stripes confusingly similar to adidas’s stripes. Rather, they look like they may be part of the shoe’s construction connecting the lower part of the shoes to the lacing.
In 2008, adidas won a staggering $300 million jury award against Payless ShoeSource for the infringement of its 3-stripe trademark used on athletic shoes. Payless manufactured similar sneakers, but used 2 and 4 stripes. Perhaps emboldened by its new-found 2-4 stripe zone of trademark protection, adidas is going after another shoe company, Radii, for its 4 stripe piping and 3 strap high-tops. I can no longer find the “420 Piped” model on Radii’s website, but you can check out this unboxing of a 420 Piped shoe:
Some thoughts: 1) the piping that adidas considers a stripe looks like it’s part of the strap construction. Straps appear to be a feature common to most Radii shoes. If integral to the shoe’s strap construction, the piping is not necessarily being used as a source indicator. Perhaps a descriptive fair use defense is available here; 2) if this guy in the video is a typical consumer that buys Radii shoes, the degree of sophistication is high (think Entourage‘s Turtle) and distinct from the lower level consumer sophistication that would be typical at a discount shoe store like Payless; 3) three straps is confusingly similar to three stripes? Really?; and 4) “420” and “Piped” possibly have a meaning that could be considered unsavory to some. Adidas gives a cursory mention of tarnishment in its Federal dilution claim, but there’s no mention of the meaning of “420.” Maybe adidas or its lawyers are not hip to the lingo kids are using these days. Or maybe many adidas buyers wouldn’t consider “420″ a harmful association.
And speaking of leaf, Adidas also sued Herbalife, a nutritional supplement company, for the alleged infringement of its three leaf logo, known as the “Trefoil” design. Adidas alleges that in exchange for not opposing the trademark registration of Herbalife’s own three leaf logo, known as the “Trileaf” logo, Herbalife agreed to not use the logo for shoes, athletic apparel and gear, and would always use the three leaf logo in close proximity to the word “Herbalife.” According to adidas, Herbalife has been using the logo to sponsor teams and athletic events where the logo is used onuniforms and sports equipment, specifically a Major League Soccer team, the Los Angeles Galaxy. Both adidas and Herbalife have trademarks on the jerseys (it seems, however, that most consumers would understand that Herbalife is a sponsor and advertiser for the soccer team, not the maker of the jersey). Apparently, adidas is the manufacturer of all Major League Soccer jerseys and in its role as the designer and producer of jerseys refused to produce a Galaxy jersey design with the Herbalife Trileaf trademark. Herbalife claimed adidas’ refusal to include the Trileaf logo was an improper self-help remedy and interfered with Herbalife’s sponsorship agreement with the LA Galaxy ownership. I don’t know if the self-help tactic worked or if Herbalife voluntarily decided to go without the Trileaf, but currently it’s not featured on Galaxy jerseys.
The Oregonian has more about the Radii lawsuit. The CEO of Radii has this to say:
Radii CEO Arisohn contended that Adidas officials initially approved a shoe design. But after it was under production, “we got an email from their attorney saying, oops, we made a mistake those won’t work.”
The basic nature of shoe design puts Radii in conflict with Adidas, Arisohn said in the email.
“Shoes are made up of lines,” he wrote. “It’s really hard to design shoes without lines and sometimes lines, that were never meant to be anything close to Adidas’ trademark lay in a way that just allows Adidas to sue.”
