Back in 1997, H&M had on their collections t-shirts, shorts and pant legs with blue, marigold, and rust-hued athletic wares emblazoned with two parallel vertical stripes. adidas argued that the usage of the stripes was clashing with its exclusive rights in its famous three-stripe trademark and initiated a lawsuit in the Netherlands. The dispute between the two giants was inaugurated.

adidas' argument was that the usage of the stripes on H&M clothing was likely to confuse consumers about the source of the non-adidas products. The fast fashion giant argued that the usage of the stripes wasn’t aimed at indicating the source of the products being purely decorative.

Several rounds followed, and many arguments were expressed in more than two decades of legal disputes taking place in several courts. Recently, in 2017, a district court at The Hague has given adidas a win in its fight over stripes arguing that the “use of a two-stripe design infringed on adidas’s three-stripe mark, which it stated is a well-known trademark among a significant portion of the consuming public”. The court’s decision was significantly criticized at the time by brands and lawyers.

Now The Hague Court of Appeal decided in favour of H&M, pointing to differences between the two parties’ usages of stripes. According to the court, initially adidas sought to prohibit “the use of two colour-contrasting parallel vertical stripes.” In response to push back from H&M, which argued that such a prohibition was too broad, adidas amended this so that it only claimed the right to prevent “the use of stripes of equal width that run parallel to each other at a distance that visually looks more or less as wide as the width of the stripes themselves.” With this in mind, the appeals court held that it is “of the opinion that H&M has not infringed [adidas’s mark] by way of its ‘Work Out’ clothing.” The Court also underlined that the results of market research reports produced in connection with the case “are not sufficient reason to assume that there is a likelihood of confusion” among consumers as to the source of H&M’s striped apparel. One report, for instance, which was provided by H&M (and contested by adidas) revealed that “only 10% of (the consumers who were surveyed) named adidas after (viewing) H&M’s (striped) Work Out clothing.”

With such a lack of consumer confusion in mind, and given that “there must be a real likelihood of confusion on the part of the average informed, circumspect and observant ordinary consumer of the goods or services in question, in this case, now that it concerns (sports) clothing, the general public", The Hague Court of Appeal sided with H&M and has ordered adidas to pay 80 745 euros to cover the retailer’s legal costs for a portion of the proceedings. adidas is submitting an "objection against the costs claimed by H&M for the appeal”; however, it is not clear if the giant sportwear brand plans to appeal the merits of the court’s decision.