Adidas Expert Testifies to Confusion With Thom Browne-designed Product

NEW YORK — The Battle of the Stripes continued in Manhattan’s Southern District Court on Thursday, with Adidas presenting a key witness who testified consumers were confused at the origin of some Thom Browne apparel and footwear because they bore stripes as a detail.

Hal Poret, a survey researcher and consultant who has been hired by Adidas and has testified on its behalf in a variety of trademark infringement cases, presented the results of a survey he was commissioned to conduct regarding Thom Browne. Poret surveyed 2,400 people and presented them with eight different images of Thom Browne-designed sweatpants, jackets, compression tights and other products sporting four parallel bars. They were also shown a pair of sneakers with a red, white and blue grosgrain bar on the side.

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Half of those surveyed — those in a control group — were shown the same pieces but with three of the bars removed — a move Poret made to alter the images so they didn’t risk being “confusingly similar.”

Poret, who was paid $60,000 to conduct the survey, testified that after crunching the numbers, 26.9 percent of those asked to speculate who they thought had made the products said Adidas. After being asked why they had made that selection, Poret said, “a lot referred to the stripes or lines.”

Even though there were actually four stripes on the apparel pieces, many of the respondents only saw three, which Poret called an “instinctive reaction” to how pervasive Adidas’ stripes are globally.

The apparel images used for the survey were shot on models against a plain white background while the still-life of the sneaker was actually taken from Thom Browne’s e-commerce site.

In the cross-examination, Thom Browne’s attorney pointed out that when showcasing the images, Poret had obscured the brand’s label, which could “dispel confusion” that it was product from Adidas rather than Browne. Poret said that this was because the survey was conducted on “post-sale” merchandise, which was described as something that would be seen on a person in the street rather than in a store on a website, where the label would be more visible.

For the same reason, Poret didn’t provide the survey participants with actual product so they could determine the different in fabric and quality between the two brands.

Later, a video deposition was shown with former Adidas in-house legal counsel Vanessa Backman, who said that during her time working for the sports brand from 2004 to 2009, she fielded trademark infringement issues for the company.

She testified that she first became aware of Thom Browne’s use of three stripes on some garments in late 2006 or early 2007. Realizing that at the time it was a “small business” and did not represent “a big issue” to Adidas, the decision was made to reach out to Thom Browne to try to amicably resolve the issue.

Although Backman could not recall the name of the executive she spoke to on the phone, it is believed to be then-chief executive officer Tom Becker, who agreed that it wasn’t worth a battle with the multibillion-dollar German company and said Browne would subsequently use four bars instead of three.

In the afternoon, Becker testified and confirmed he had received a call from Adidas in 2007 and subsequently agreed to change from three bars to four. Becker said he later attempted to contact Adidas to let the company know about the change but was unsuccessful. He added that if the company had objected, Thom Browne would not have moved forward with the use of four bars.

Backman said Adidas did not actively monitor the brand after she received the promise from the “legitimate” executive at the Thom Browne brand, and didn’t believe the problem was serious enough to warrant “following them around for 20 years.”

That is the crux of the argument from Thom Browne Inc., which will present its defense after the Adidas team rests its case. After Becker agreed to change to four stripes, it took Adidas 10 years to object while Browne continued to grow his then-fledgling business into a strong fashion brand that had sales of 69 million euros in the third quarter of this year.

The four-bar pattern debuted at a Thom Browne runway show in 2008 but it wasn’t until 2018 that Adidas approached the company to ask it to cease using what had become a signature. In addition, Thom Browne doesn’t believe consumers are confused by any similarities between the brands or that Adidas was harmed by the designer’s use of stripes. An Adidas track pant retails for around $55 while a Thom Browne pant sells for more than $1,000.

“They fell asleep at the wheel and woke up too late,” Browne’s attorney said in his opening statement on Tuesday.

The trial, in front of Judge Jed Rakoff, is expected to last about two weeks and Browne himself and the company’s current CEO Rodrigo Bazan are both expected to testify.

Adidas is seeking damages of $867,225 — the amount that it says the company would have received in licensing fees from Thom Browne Inc., if the two had worked together — as well as the $7 million in profits it alleges the American fashion brand made selling apparel and footwear with stripes.

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