Protecting stripes as trade marks? Adidas did…

Protecting stripes as trade marks? Adidas did…

In fashion and design, sometimes the simplest details speak the loudest.

A few parallel stripes on a shoe, a check pattern on fabric, or even the colour of a sole can, over time, become instantly recognisable. Once that happens, the law may step in to protect these design elements — not just as decoration, but as trade marks.

One of the most famous examples in Australia is the battle between Adidas and Pacific Brands, which confirmed that even something as simple as three stripes can be protected. But Adidas is not alone.

Other well-known fashion houses have also registered patterns and shapes as trade marks, from Burberry’s tartan to Christian Louboutin’s red soles.

Let’s look at how these cases unfolded and what they mean for brand owners.

Adidas v Pacific Brands: Three Stripes vs Four

Adidas has used its three-stripe motif on sportswear since the 1950s. The design is now iconic, appearing not just on shoes but across apparel and accessories. To protect its position, Adidas registered several three-stripe trade marks in Australia.

Between 2006 and 2010, Pacific Brands imported and sold footwear featuring four parallel stripes. Some of the shoes looked strikingly similar to Adidas’ famous three-stripe trainers. Adidas demanded they be pulled from sale. Pacific Brands agreed to withdraw some designs, but Adidas pressed on with litigation over 12 further models.

The Key Arguments
Pacific Brands’ defence: The four stripes were decorative, not a trade mark. They simply helped consumers categorise the shoes, like a styling detail, and did not indicate origin.
Adidas’ case: The stripes were not mere decoration. To the average consumer, stripes on the side of sports shoes indicated Adidas. Four stripes were close enough to three to cause confusion.

The Court’s Findings
Justice Robertson of the Federal Court found that some of Pacific Brands’ designs did infringe Adidas’ trade marks. The shoes at issue featured four evenly spaced, parallel stripes of equal width — visually very close to Adidas’ three stripes.

While Pacific Brands insisted the stripes were just embellishment, the judge found they also functioned as a brand. There was a “real, tangible danger of confusion occurring” such that consumers might think the shoes came from Adidas.

Interestingly, not every design was caught. Some four-striped shoes had been styled with wider central gaps or other variations that sufficiently distinguished them. These were not infringing.

Ultimately, Adidas was awarded damages of $20,000 and a portion of its legal costs. More importantly, the case cemented the principle that even simple, decorative elements can function as trade marks when they have acquired distinctiveness through use.

Patterns and Shapes as Trade Marks

The Adidas decision sits within a broader trend: courts and IP offices increasingly recognise that patterns, textures, and even shapes can serve as badges of origin. Here are some high-profile examples registered in Australia:

• David Jones houndstooth (TM No. 659441): A black-and-white geometric pattern woven into the retailer’s identity and store branding.
• Burberry tartan (TM No. 708955): The famous beige, black, red and white check pattern instantly signals the British fashion house.
• Louis Vuitton monogram (TM No. 366170): The repeated flower and LV symbols, globally recognised and fiercely protected.
• Christian Louboutin red sole: A distinctive red lacquered sole, which the courts have recognised as more than mere colour — it is a trade mark linked to luxury footwear.

These examples show that trade marks are not confined to words and logos.

Anything capable of distinguishing your goods — including stripes, patterns, textures, colours, or even shapes — can qualify, provided it is sufficiently distinctive.

Small details matter

The Adidas case also highlights how small details matter in trade mark law. The width of a stripe, the spacing between elements, and the overall impression on the consumer can tip the balance between infringement and non-infringement.

For example:

• Four evenly spaced stripes in parallel looked too much like Adidas’ three.
• But four stripes with a distinctive central gap were deemed sufficiently different.

This shows how courts assess infringement based on the total impression in the eyes of the ordinary consumer, not through technical differences alone.

Practical Lessons for Businesses

Decorative elements can be brands. Do not assume that stripes, checks, or shapes are just decoration. If consistently used, they can signal trade origin and attract legal protection.

Register distinctive features. If your brand uses a consistent pattern, stripe arrangement, or shape, consider registering it as a trade mark. Registration gives you stronger rights than relying on reputation alone.

Copying carries risks. Even if your intention is innocent, you may still infringe if your product creates confusion. As the court noted in Adidas’ case, intention is not the deciding factor.

Confusion is key. Ask whether the average consumer, with imperfect recollection, might wonder if your product comes from the same source as a competitor’s. If so, you may be infringing.

Survey evidence can be tricky. Adidas tried to rely on an online survey, but the court gave it little weight because it did not replicate real shopping conditions. Solid evidence of confusion is hard to establish, but visual comparison often speaks volumes.

Conclusion

For businesses, the lesson is twofold: protect your distinctive features early, and tread carefully when taking “inspiration” from others. What looks like harmless decoration may, in fact, be someone else’s trade mark.

At Sharon Givoni Consulting, we’ve helped protect all sorts of wonderful shapes, patterns and unusual trade marks. These range from the clothing industry — like distinctive fabrics, logos and shoe features — to the food sector, such as the unique packaging of snack products, and even more imaginative examples (including a signature swirl pattern on a chocolate-coated biscuit).

These examples highlight how creative branding can go far beyond logos and words. A trade mark can be:

• A pattern (like Burberry’s tartan).
• A shape (like Toblerone’s triangular prism or Coca-Cola’s contour bottle).
• A colour (think Cadbury purple or Tiffany blue).
• Even a sound or scent in some circumstances.

The key is distinctiveness: does it signal your brand and set your products apart? If so, it might be registrable.

But that’s a topic for another day.

FAQs on Trade Marks for Stripes, Patterns and Shapes

1. Can I register a movement, like a “star jump”, as a trade mark?
Yes — unusual trade marks such as movements or gestures can sometimes be registered in Australia, although it is much harder than with logos or words. For example, in other countries we’ve seen applications to protect a sports move or a sequence of gestures used in advertising. To succeed, you’d need to show that the movement itself functions as a brand, not just as a generic action. That means consumers must recognise the movement as identifying your business (like a brand signature), not simply as exercise. Because it’s complex, movement marks are rarely registered — but they are possible.

2. Is it expensive to register a trade mark like stripes or a pattern?
The cost depends on how many classes of goods and services you apply for, and whether the application is straightforward. In Australia, the government fee starts from a few hundred dollars per class, and professional fees may add to that. If you are applying for something unusual (like a pattern, shape or colour), it can become more costly because the examiner may raise objections and you’ll need legal arguments to prove distinctiveness. However, for brands where these elements are central — like Adidas’ stripes — the investment can be worth it, because protection lasts for 10 years at a time and can be renewed indefinitely.

3. What does “distinctive” mean when it comes to trade marks?
Distinctive means your mark is capable of telling consumers that your product comes from you — and no one else. Words like “shoes” for shoes are not distinctive, because they simply describe the goods. But a logo, invented word, or unique pattern can be distinctive. Sometimes, even simple things like stripes, colours or shapes can become distinctive if they are used consistently and extensively over time, so that people come to immediately associate them with your brand. That’s why Adidas’ three stripes, or McDonald’s golden arches, are registrable — they’ve acquired distinctiveness through use.

4. How did Cadbury get the colour purple trade marked, and what are the limits?
Cadbury has fought for years to protect its famous shade of purple (Pantone 2685C) used on chocolate wrappers. In Australia, Cadbury succeeded in registering the colour for certain chocolate products, after showing that consumers strongly associate that purple with Cadbury chocolate. However, the registration is limited: Cadbury doesn’t “own” purple for everything, and other chocolate companies can use different shades or use purple in ways that don’t cause confusion. The lesson is that colour trade marks can be registered, but only if you prove consumers link that exact colour to your brand, and protection will be restricted to particular goods or services.

5. Why is the Nike “swoosh” tick so powerful as a trade mark?
The Nike tick (swoosh) is one of the most famous trade marks in the world. What makes it powerful is its simplicity and distinctiveness. From its earliest use, Nike consistently applied the tick across shoes, clothing and advertising until consumers came to instantly associate it with Nike, even without the word. The tick is distinctive because it doesn’t describe shoes or clothing — it’s just a simple, abstract shape that over time became iconic. This shows the importance of choosing strong, simple marks that can be used consistently and scaled globally.

6. Can I register a sound or a smell as a trade mark in Australia?
Yes, in theory. Trade marks in Australia aren’t limited to words and logos — they can also cover sounds, scents, movements and even aspects of packaging if they function as a badge of origin. For example, the Harley-Davidson motorcycle “revving” sound has been registered overseas, and in Australia the “duck quack” sound for a children’s game has also been registered. Scents are much rarer, because it’s harder to prove distinctiveness and to represent the smell clearly in an application. That said, a well-defined and consistently used smell (for example, a particular floral fragrance sprayed inside packaging) could qualify if consumers come to see it as uniquely identifying your brand. These kinds of marks are unusual and difficult to register, but they show just how broad trade mark protection can be.

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Please note the above article is general in nature and does not constitute legal advice.

Please email us info@iplegal.com.au if you need legal advice about your brand or another legal matter in this area generally.