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The General Court of the EU confirmed the decision of the EUIPO Second Board of Appeal in relation to the EU figurative trade mark registered by adidas AG, according to which this mark, consisting of “three parallel equidistant stripes”, is devoid of distinctive character. The General Court confirmed that adidas AG had failed to demonstrate use of this mark throughout the EU or that the mark, which is inherently devoid of distinctive character, had, by virtue of that use, come to identify the goods for which it was registered and thus had acquired distinctiveness. The General Court, in reaching this conclusion, relied on its assessment that most of the evidence provided by adidas AG was irrelevant for the purposes of establishing that the mark had acquired distinctive character through use as it was not directly linked to the use of the mark in its registered form. In addition, the General Court recognized that there was nothing in the application of adidas AG to suggest that the registered trade mark could be interpreted as a “pattern mark”. Finally, in relation to the “law of permissible variations”, the General Court stated that because the (2020) 17:2 SCRIPTed 410 411 figurative mark at issue is so simple, even a slight change can alter its distinctiveness.

The General Court of the EU Confirms that Adidas’ “Three Parallel Equidistant Stripes” EU Figurative Trade Mark is Devoid of Distinctiveness