Some (delayed) thoughts on the recent 5-stripes judgment of the General Court in Case T-85/13 K-Swiss, Inc. v. OHIM / K�nzli SwissSchuh AG, on which see Laetitia Lagarde's timely and informative note (citing the difference with the decision of the Swiss Supreme Court) and also that of Alberto Bellan on IPKat.

Readers of ths blog will recall that the General Court allowed the cancellation of K-Swiss 5-stripe trademark below, on the grounds that it does not live up to the required minimum degree of distinctive character since that design (5-stripes) does not depart significantly from the standard designs that are shown on the sides of these kind of products and will be perceived simply as decoration.

That is all well, but the 3-stripe trademark of adidas is widely recognized as a famous trademark amongst several jurisdictions in Europe (Greece being part of that company). This blogger can also recall a good number of court judgments across Europe finding likelihood of confusion between 3 and 4 stripes marks.

So, the question kind of raises itself: If 4 is an infringement of 3, how can 5 be decorative? Put in another way: If adidas initiates infringement proceedings (in the fantastic unified EU jurisdiction) aganst an entity producing/trading 4-striped footwear, it is most likely to succeed (as it has in the past). But if K-Swiss does the same, it will not succeed as its 5-stripe mark is devoid of distinctive character. Those scratching their heads with one hand, please raise the other.