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Adidas-Salomon AG v Nike International Ltd
Oberlandesgericht (Koln) 16 December 2005

Case Analysis
Where Reported Case Digest
[2006] E.T.M.R. 37 Subject: Intellectual property Keywords: Capacity; Confusion; Device marks; Embellishment; Germany; Infringement; Sportswear; Well known marks Summary: trade marks; well known marks; infringement of three stripe device mark for sportswear; twin strip mark used on identical goods in conjunction with word mark; Germany Abstract: The appellant (N) appealed against a decision of the Cologne District Court that N had infringed the well known device mark of the respondent (S). S's mark consisted of three parallel stripes on colours that contrasted with the sportswear to which they were affixed. N had used a twin parallel stripe mark on identical goods in conjunction with its own SWOOSH trade mark. N contended that it had used the stripe markings as mere decoration, not as a trade mark and relied on survey evidence, whereby interviewees were asked to name the manufacturer of sports trousers bearing striped logos. Held, dismissing the appeal, that (1) familiarity with the appearance and positioning of S's mark meant that consumers viewed it as an indication of origin. Accordingly, trade mark use could be assumed for the purposes of the Trade Mark Act (Germany) s.14(2)(2). (2) Although stripe patterns could be primarily decorative and were found on a range of sportswear from different manufacturers, S's mark was not purely decorative and was very well known it its highly specific form. (3) N's survey evidence was only indicative of the origin function of a mark as manufacturers did not have to be correctly identified for trade mark use to be established. (4) N's use of the stripe mark in conjunction with its SWOOSH trade mark did not immediately preclude the use of the twin stripes as a trade mark. The twin stripes were placed in the same position as that used by S and the SWOOSH mark could be hidden from view by a...