Round Two in the Adidas Versus Thom Stripes Battle

The Adidas versus Thom Browne stripes battle is not over yet since the German sports brand has appealed its loss in the trademark infringement trial.

In January, an eight-person jury in Manhattan Southern District Court came back with a verdict that found the luxury designer was not liable for damages or profits that it made selling product with four stripes or its trademark grosgrain ribbon.

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Adidas America and Adidas AG had been seeking damages in the amount of $867,225 — the amount the companies agree it would have received in licensing fees from Thom Browne Inc., if the two had worked together — as well as the $7,011,961 million in profits it alleges the American designer made from selling apparel and footwear with stripes.

Although the jury found for Browne, the German powerhouse appealed months later, saying that Judge Jed Rakoff had given the jury incorrect instructions regarding confusion that might result at the point-of-sale and requested a new trial. It wrote that confusion “need not occur at point-of-sale but can also occur either during the ‘initial interest’ or ‘post-sale’ phase,” and cited a Polaroid case from 1961. Adidas also said Rakoff made a decision to exclude testimony from one of its experts but “inexplicably determined” that an expert from Thom Browne was allowed to testify about the use of stripes on apparel. As a result, Adidas wrote, “this court should vacate the judgment in light of the district court’s prejudicial errors and remand for a new trial.”

Last week, Thom Browne’s attorneys responded that the instructions to the jury were not misleading and the expert witness it used “did not plausibly harm Adidas,” and asked the appellate court to reject Adidas’ attempt to revisit the issue.

According to Thom Browne’s rebuttal: “Adidas’ arguments are riddled with missing facts and misstatements” and Rakoff gave the jury “clear instructions regarding the nature of Adidas’ claims. Taking into consideration the jury instructions in their entirety, together with the arguments and testimony at trial, there can be no doubt that the jury was well aware that it would not be considering point-of-sale confusion, but only initial interest and post-sale confusion — just as Adidas wanted and argued.”

Neither Harley I. Lewin of Lewinconsult LLC, Thom Browne’s attorney, nor R. Charles Henn Jr. of Kilpatrick Townsend & Stockton LLP, Adidas’s attorney, responded to requests for further comment Monday. But according to legal sources, an appeal is not unexpected in cases such as this but appellate courts are loathe to supersede a jury verdict.

The process going forward will be for each side to file additional briefs, followed by oral arguments before the appellate court makes its decision, a process that can take a significant amount of time.

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