Making your markWritten by 1HQ 31 March 2021
The case of two stripes good, three stripes bad (or vice versa)
Firstly, let me point out that I’m not a lawyer, nor an Intellectual Property attorney dealing with the fine print of trade mark law, so please don’t hold any of my characteristic sweeping generalisations against me in court.
But I do earn a crust in the creation of Design and my professional life revolves around the finding and executing of original thinking for clients. Advising on the minefield of things like trademarking new names, the claiming ownership of a certain word, unique spelling or wordmark is a big part of my life. Looking for the small twist that will make a piece of typography or a symbol unique, is what keeps my creative colleagues fired up, day in day out.
Nobody wants to be told that their work is just like someone else’s, too similar to claim as truly distinctive. True, there are those moments before presentations when everyone realises why they love a particular route, because it’s just like the torn-out piece of reference that’s been stuck to the wall of the studio for a few weeks that has leaked into our group consciousness. Also, and more worryingly, there are organisations who want to benefit from looking a little bit like a key competitor because they want to replicate their success. Imitation is the sincerest form of flattery, after all, isn’t it? Is it?
But owning key assets is critical to the Design world; surely, that’s literally what branding is, at its core. Both brands and consumers want the protection of knowing that the thing they own is the real deal, not a lazy knock-off, and not easy to rip off.
Which brings me to the recent decision by the general court of the EU this week. Adidas failed to expand its trademark, three-stripe design in the EU. They“failed to provide sufficient evidence to show that when seeing three stripes on clothing, footwear or headgear, consumers immediately associate such products with Adidas”.
In other words, they failed to prove that their logo had acquired a “distinctive character” in every territory that it does business in.
This is part of a long-running and very expensive battle with at least one other company over the right to use two or three stripes and how they are applied to products.
What are the implications for brands? Where do you draw the line (or the stripe)? Apparently, the invalidation of the trademark“won’t make much practical difference on the street”, but there’s bound to be an impact on potential earnings for both brands in the battle.
There’s also a bigger principle at stake about what and where you claim originality, because there may be someone who sees an opportunity to benefit from your Achilles Heel. That means that every brand, of every shape and size and stripe will need to get its arsenal of differentiating visual and verbal assets in order. Because you never know who’s going to challenge your ‘ordinary figurative mark’.
You’re going to need a whole bunch of other distinctive design assets to support your visual world – and to soften the blow when you’re told that you’re no longer the original. And proving that you are is going to cost you your shirt, or shoes.
For more thoughts on this topic, head over to our ‘Brand Meaningless’ article written by Amelia Boothman, Director of Brand & Innovation Strategy.