MANHATTAN (CN) — The Second Circuit on Friday dismissed claims from Adidas that the Thom Browne clothing company copied its famed three-stripe logo.
The appeals court also rejected arguments that the sportswear brand was unfairly favored at trial.
After an eight-day trial last year, a Manhattan federal jury returned a verdict in favor of Thom Browne, rejecting Adidas’ claims that the clothing brand was confusing consumers by selling activewear with four stripes. Adidas claimed the design resembled its iconic three-stripe shoes and athletic clothing.
During oral arguments in front of the Second Circuit, lawyers for Adidas claimed that U.S. District Judge Jed Rakoff, a Clinton appointee, erred in telling jurors to consider whether the two brands were competing in the same market.
Instead, they said, the judge should have clarified Adidas’ claims against Thom Browne.
“The person who is confused is, in fact, not a consumer that Thom Browne is competing for," Adidas attorney Charles Henn of Atlanta-based Kilpatrick Townsend & Stockton said during oral arguments. "It’s a consumer that Adidas is competing for [who] sees a Thom Browne product and is confused by that."
A three-judge Second Circuit panel disagreed on Friday. “Adidas cannot show an error, let alone a prejudicial one, in the district court’s charge,” the panel wrote in their decision.
The panel also rejected Adidas’ claims that the lower court had failed to clarify its claims to the jury. "The district court instructed the jury multiple times to confine its inquiry to initial-interest and post-sale confusion,” the panel said, referencing two points of contention for Adidas.
In its decision, the panel pointed to multiple instances in which the jury was instructed to specifically consider these two types of confusion when considering Adidas’ claims.
During arguments, Thom Browne attorney Robert Thomas Maldonado agreed that the court made Adidas’ claims clear in its instructions to the jury. He added that the issue of competitive proximity — far from being unrelated — was important for the jury to consider the claims in this case.
“The court made it clear that this was a pre-sale and post-sale confusion case," Maldonado said. "The instruction on competitive proximity is not an instruction that’s limited to point-of-sale cases."
The panel also dismissed Adidas’ claims that Judge Rakoff wrongfully excluded its expert witness William D’Arienzo, who was expected to testify that the “line between luxury brands and sportswear has blurred significantly in recent years.”
In its decision, the panel said the court’s decision to exclude D’Arienzo’s testimony was appropriate because the research he based his conclusions on was unreliable. Specifically, the panel noted that he reviewed “fashionistas” on the internet.
The panel similarly agreed with the court’s decision to include testimony from JoAnne Arbuckle, one of Thom Browne’s experts. Adidas objected to the admission of her testimony, arguing that if its own expert was unreliable, so was Thom Browne's.
“The district court precluded Arbuckle from offering expert opinions but permitted her to testify on the ‘appearance of Adidas’s three-stripe mark as a historical matter in numerous situations.’ And she did so,” the panel said. “But she never testified as an expert, so Adidas’s objection that Arbuckle’s testimony was within the ken of the average juror misses the mark.”
Neither party's attorneys responded to requests for comment. U.S. Circuit Judge Guido Calabresi, a Bill Clinton appointee, U.S. Circuit Judge Barrington Parker Jr., a George W. Bush appointee, and U.S. Circuit Judge Michael H. Park, a Donald Trump appointee, all contributed to the decision.
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