Yesterday Advocate General Damaso Ruiz-Jarabo Colomer advised the European Court of Justice, in Case C-102/07 Adidas AG and Adidas Benelux BV v Marca Mode, C&A Nederland, H&M Hennes & Mauritz Netherlands BV and Vendex KBB Nederland BV, to remind the referring court (the Hoge Raad der Nederlanden) that it was ultimately for the Dutch judges to resolve a dispute over Adidas AG's three-stripe logo trade mark. They must decide whether the three stripe motif is essentially creative or just an inherently non-distinctive pattern that has become distinctive through use in respect of the products it covers. In the first case the owner should be rewarded by getting fully exclusive rights; in the second, protection should be subject to "fair use" rules.

The underlying dispute stretches back more than a decade and involves attempts by Adidas, the world's second-largest sporting-goods maker, to stop retailers like Hennes & Mauritz and C&A from selling sports clothing with similar stripes. The Hoge Raad asked whether a simple pattern like Adidas's three stripes, which is protected mainly because of the reputation it has achieved among consumers, enjoys the same protection as patterns that are more inherently innovative, or whether one should take into account the need to keep its underlying non-innnovate element free for use by competitors too. This case is Adidas' third reference to the European Court of Justice. In 2000 the Court ruled that the "mere possibility" of confusion with a rival's stripes was not enough to support a claim of trade mark infringement. In 2003 the same tribunal ruled that there was no breach where a competitor's two-stripe pattern on sports clothing was viewed by consumers as "purely as a decorative motif" (background information from Stephanie Bodoni, Bloomberg News).