words by Nick DePaula
On May 5th, 2008, adidas was awarded $305 Million in damages stemming from a lawsuit filed against Payless ShoeSource Inc. that claimed trademark infringement of the famed Three Stripes design cue. While it was just another tally to the total number of 325 infringement matters adidas has pursued in the United States, it was far and away the greatest monetary amount awarded in damages, and also a foreshadowing moment of great importance in the footwear industry.
It was determined by a nine person jury in US District Court in Portland, Oregon (coincidentally where adidas America’s US Headquarters are located) that Payless ShoeSource infringed upon adidas’ trademark rights on 267 unique footwear styles. [The official Jury Verdict form can be found here -- with images of all offending shoes] Adidas, obviously the brand with three stripes if for some reason you were unaware, based the foundation of their lawsuit around the history and equity they have built in the three stripes design cue, which is commonly found in parallel alignment along the midfoot and has been a globally recognized branding tool for the company with over sixty years of heritage. While Payless didn’t outrightly copy the stripes to the count of three, they sold models consisting of either four or two parallel stripes along the midfoot, in categories like athletics and casuals for men, women and kids.
While some models incorporated unique design themes and inspirations unrelated to previously released adidas shoes, the most apparent infringement could be found in the eerily similar Superstar imposter. With a hardened rubber toe cap and similar cupsole construction, the four stripes across the midfoot may not have been an exact replica of the famed Superstar, but because the negative space of the four stripe design could be inferred as being three stripes, it’s even more understandable as to why the US District Court jury decided in adidas’ favor. “We are very pleased with this result,” said Paul Ehrlich, adidas America General Counsel, in a written statement released to media. “Adidas is pleased the jury agreed with our position that Payless’ conduct was unlawful and cannot be tolerated. We have been building the Adidas brand for over 60 years, and this verdict supports the value our society places on protecting innovation and quality brands.”
While there’s definitely no denying the effort that adidas has poured into building itself into one of the world’s leading athletic footwear, apparel and equipment manufacturers, what does this say about the smaller brands that depend on the value chain shopper? You can see why adidas would be furious about Payless’ “homage” to the Superstar at a fraction of the retail price, but the entirety of the list of shoes found to infringe on trademark rights definitely includes some very debatably unique designs and styles. Out of all potentially infringing shoes decided upon by the jury, only one pair was found to not infringe upon adidas’ legally protected trademark rights, as the shoe (pictured below) featured two stripes, with one partially covered by an overlay.
So, how will stores like Target, Kohl’s, Wal-Mart and Payless design shoes going forward, and will there be an added sense of cautiousness to avoid potentially perceived logo or trademark infringement? “It sent shock waves throughout the entire value chain industry,” admits an experienced budget-chain designer who spoke under the condition of anonymity. “It’s very easy to see how a general consumer could say, ‘If I wear this shoe with jeans and the back stripe is covered, maybe it will look like an adidas, but for a cheaper price.’ Anytime you’re designing shoes, you’re going to be following trends, but a good designer should have the creativity to avoid any potential infringements. The straight stripe is such a simple mark, and structurally it makes sense to design stripes along the shoe, but there will certainly be some added precaution to make sure you’re designing a shoe that is unique on it’s own.” It’s hard to say how much of an immediate impact this decision will have upon Payless ShoeSource, who reported nearly $2.8 Billion in revenues in 2007, placing it 38th among specialty retailers, according to Fortune Magazine, but you can probably figure they’ll be looking into a few new design strategies.
According to the official Jury Verdict form as submitted to US District Court, these Payless models pictured above were just a few of the 267 total unique styles found to infringe upon adidas’ trademark three stripes design.
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