I have been a long critic of copyright and trademark claims that seem to be growing exponentially with companies claiming ownership over basic words and images in a feeding frenzy of claims. Despite growing objections of the civil and criminal sanctions imposed under such claims, lobbyists have had little difficulty in expanding these laws and regulations. Now a federal judge has shown just how fluid these claims can be. Because Skechers and Adidas both have classic white tennis shoes with green heels, the federal judge has enjoined Skechers to stop selling the shoe and two other styles “confusingly similar” to Adidas offerings. I see two classic shoes with similar heels. I fail to see why Adidas should be able to claim this “look” as its own property. The order is linked below.
U.S. District Judge Marco A. Hernandez looked at three Adidas trademarks raised by Adidas, including its familiar “three-stripe” logo on athletic shoes, its distinctive Stan Smith white tennis sneaker and its “Supernova” design. However, again, the question is whether no other shoe company can use a three strip design. Adidas stated using the three strips in the 1950s and called the Skechers designs as “a blatant, bad faith attempt to trade on Adidas’ goodwill and to profit wrongfully from consumer’s confusion.”
The most recent claim follows a disturbing trend in copyright and trademark claims over things occurring in public or common phrases or terms. (For a prior column, click here). We have often discussed the abusive expansion of copyright and trademark laws. This includes common phrases, symbols, and images being claimed as private property. (here and here and here and here and here and here and here and here and here and here). This included recently a New York artist claiming that he holds the trademark to symbol π.
At issue was also the “Stan Smith” white tennis shoe with a green heel patch manufactured by Adidas and a Skechers lookalike. One can certainly understand the confusion. However, the design is also incredibly basic, particularly with white tennis shoes. When you pick such a basic design like a green heel on a white tennis shoe, the question is why you should able to prevent others from using the same basic design and, perhaps more importantly, how different must the design be. Can you no longer use a green lip? What is the green was a bit thicker? It is hard to discern where to draw the line. This is a matter of aesthetics for designers who are all working off a classic white tennis shoe template.
Hernandez noted that “[a]lthough Skechers points out minor differences between its Onix shoe and the Stan Smith — that the Onix has five, not three, rows of perforations which extend in a different direction, and that its colored heel patch is a slightly darker shade of green — the unmistakable overall impression is two nearly identical shoes.”
Skechers dismissed the ruling from a business perspective as involving “only three minor and commercially insignificant Skechers styles that have already been discontinued.”
My greatest concern with the expanding copyright and trademark laws is that they are doing the opposite of their intended purpose in stifling rather than fostering creativity. What do you think?
Here is the preliminary injunction: Adidas Injunction Order