Thom Browne Inc & Anr v Adidas AG [2025] EWCA Civ 1340
On 23 October 2025, the Court of Appeal (Peter Jackson, Arnold and Falk LJJ) handed down judgment in adidas AG v Thom Browne Inc [2025] EWCA Civ 1340. The Court of Appeal upheld the first instance decision of Mrs Justice Joanna Smith DBE ([2024] EWHC 2990 (Ch)).
While the first instance decision included matters of trade mark infringement and passing off, relating to Thom Browne’s trade in clothes bearing its ‘4-Bar’ Design, adidas appealed only in respect of the High Court’s decision to invalidate six adidas trade marks relating to the use of three stripes on various articles of clothing, including tracksuit tops, and tracksuit bottoms. The High Court decision was the first UK decision in relation to ‘position marks’ and the Court of Appeal has now provided some helpful guidance on such marks and how the requirements for registrability apply to them.
The Court of Appeal ultimately dismissed the appeal, upholding the High Court decision that the marks were invalid for failing to satisfy the requirements for registrability. The Court of Appeal rejected adidas’ argument that the registrations each related to a single sign with a permissible degree of variation. The Court of Appeal preferred Thom Browne’s argument, adopted by the Judge at first instance, that the registrations each related to an impermissible multitude of signs.
The interplay between the written description and the pictorial representation was also a key part of the Court of Appeal’s reasoning on these marks. The description in each case encompassed variations that were not pictured, including variations in length and placement of the stripes, and this uncertain interplay between picture and description meant that the Judge had been justified in concluding that the registrations fell below the requisite standard of clarity and precision.
Edward Cronan acted for Thom Browne.