Can three stripes be protected as intellectual property? That question is now before the Trademark Trial and Appeal Board (“TTAB”). Adidas AG (“Adidas”), the German sportswear giant, instantly recognizable for its three-stripe branding, filed an opposition to Turner Sports, Inc.’s (“Turner”) trademark application, claiming its logo is too similar to the Adidas three-stripe mark. Turner, responsible for sports broadcasts, is a division of Turner Broadcasting System, Inc. Last summer, Turner launched “ELEAUGE,” the premium esports tournament and content brand, according to its website. ELEAGUE filed a trademark application for its logo in June 2016, which features the letter “E” shaped by three slanted parallel lines.
The opposition, filed on October 10, follows several legal challenges by the sportswear corporation, which has vigorously protected its branding for years. In fact, in 2008, Adidas took a case all the way to the European Court of Justice, where the court ruled in favor of Adidas. The lawsuit was brought against four competitors which used a two-stripe design on their products. The court found that likelihood of confusion among consumers is the most significant issue, dismissing the competitors’ arguments that “simple motifs must be available to all.”
In its opposition, Adidas asserts two counts against Turner under the Lanham Act. The first count is asserted under Lanham Action Section 2(d), likelihood of confusion. In that count, Adidas argues that due to the similarities of the two logos and “the fact that their respective goods and services overlap or are otherwise closely related, there is a likelihood that Applicant’s Goods and Services will be perceived as being sponsored by or affiliated with Adidas.” Although Adidas does not claim that it offers services within the “esports” sphere, it states that “such goods and services are within the natural zone of expansion of Adidas’s business and goods and services.” The second count, asserted pursuant to Lanham Act Section 43(c), dilution, alleges that the “use and registration” of the Turner logo, “will erode the association of the 3-Stripes Mark with Adidas, lessen the capacity of the 3-Stripes Mark to identify Adidas as the source of goods and services to customers and potential customers who would expect the 3-Stripes Mark to identify genuine and authorized products and services of Adidas,” among other things. We will have to wait and see how this tournament plays out before the TTAB, but in the meantime, do you think the logos are too similar?