adidas Means Business: Sues Skechers for Copycat Sneakers

Sep 22, 2015

Just coming off the heels of the lawsuit it filed against Marc by Marc Jacobs on April 8, 2015, adidas America, Inc., adidas AG, and adidas International Marketing B.V. (collectively, “adidas”) filed suit against Skechers USA, Inc. (“Skechers”) on September 14, 2015 in the United States District Court of Oregon for trademark and trade dress infringement, unfair competition, trademark and trade dress dilution, deceptive trade practices, and breach of contract. The company alleges that the Skechers “Onix” tennis-style sneaker infringes on one of its most iconic shoes, “the ‘Stan Smith’ sneaker, which adidas introduced in the early 1970s featuring a classic tennis-shoe profile with a sleek white leather upper, three rows of perforations in the pattern of the well-known Three-Stripe trademark, a defined stitching across the sides of each shoe enclosing perforations, a raised mustache-shaped colored heel patch, which often is green, and a flat tonal white rubber outsole.”


Side by Side
adidas “Stan Smith” v. Sketchers “Onix”


In its complaint, adidas outlined all the similarities between the adidas Stan Smith and the Skechers Onix.


adidas v. Sketchers Elements


In support of its infringement claims, adidas cites its various federal registrations for its famous “Three Stripe Mark” on athletic shoes.


U.S. Reg. No. 2278589
U.S. Reg. No. 2278589


U.S. Reg. No. 3029129
U.S. Reg. No. 3029129



U.S. Reg. No. 3029135
U.S. Reg. No. 3029135


Although the perforations on the Skechers Onix do not exactly mimic the three rows of perforations in the pattern of the well-known Three-Stripe Mark, it is hard to deny the striking similarities between the two sneakers. adidas is seeking various damages, including all profits derived from the infringing good, costs and reasonable attorneys’ fees, as well as an injunction to stop all sales and marketing of the infringing good.







Do I Need to Dress Up My Fashion Line in a “Trade Dress?”

Aug 20, 2014

What is a trade dress?  Is this a new fashion trend that Miley Cyrus or Rihanna started?

Not exactly.  Trade dress law is a subset of trademark law that originally included only the packaging or “dressing” of a product, but in recent years has been expanded to encompass the design of a product.  It is the overall look and feel of a product or service that allows the average consumer to identify the source of the product or service.  It includes the design or configuration of a product, the labeling and packaging of goods, and the décor or environment in which services are provided.  Trade dress can also include features such as size, shape, color or color combinations, texture, or graphics so long as such elements are not functional.


Here are a few examples:


Hermes “Kelly” Bag

U.S. Trademark Reg. No. 1,806,107


Louboutin “Red Sole”

U.S. Trademark Reg. No. 3,376,197


Burberry “Plaid Pattern”

U.S. Trademark Reg. No. 3,529,814

So do I have a trade dress to register?

It depends. A trade dress must be 1) distinctive and 2) nonfunctional.


To qualify as distinctive, a trade dress must be recognizable to consumers as source identifying. In other words, a trade dress is distinctive if an average customer recognizes your brand by simply seeing one of your products.  For example, if I walked down the street in a standard black trench coat and a pair of black pumps, the average consumer who walks by me would not likely identify Christian Louboutin and Burberry as the source of the coat and pumps.  This is because fashion designs are not inherently distinctive, and numerous fashion houses have replicated the designs of a standard trench coat and black pump countless times.  It is only when the average consumer sees the plaid pattern on my popped collar and the flash of red on my pumps’ soles, as a whole unit of the coat and pumps, will she be able to identify Christian Louboutin and Burberry as the source of the coat and pumps.  Although the distinctive requirement is more difficult to achieve, fashion designs can acquire distinctiveness over time with consistent advertising and promoting.


To qualify as nonfunctional, a trade dress must not be essential to the use or purpose of the product or service and not affect the cost or quality of the product or service.  A nonfunctional design feature includes a slogan, a symbol, an ornamental feature, a distinctive shape, or some feature that is intended to remind a consumer of a brand.  For example, a Coca-Cola bottle’s function is to hold the Coca-Cola liquid.  However, the bottle’s shape and design are nonfunctional because it does not affect the bottle’s ability to hold the liquid.


So, if you can prove that your trade dress has achieved distinctiveness and is nonfunctional, protect it by registering it with the United States Patent and Trademark Office.  The advantages of a registered trade dress are similar to a registered trademark. More information can be found here: Don’t Get Caught With Your Pants Down: Cover Your Assets By Registering Your Brand Name.