Adidas has lost the latest round of a legal battle against a company marketing clothes with a double-stripe logo - similar to its own triple-stripe trademark.
Adidas claims Dutch company Fitnessworld is breaching EU trademark laws by using a motif of two stripes on sports clothing which could be mistaken for Adidas-brand goods.
But an Advocate-General of the European Court of Justice said today that Fitnessworld was using its double stripes as a simple decorative embellishment, and not as a trademark.
Advocate-General Jacobs said the decorative use of signs similar to trademarks could not be prevented by trademark owners, unless the sign was being used "for the purpose of distinguishing goods or services".
This was not the case where a sign would be viewed purely as a decoration "by the relevant section of the public".
The issue was the extent to which the owner of a trademark with a reputation could prevent the use of a similar sign "which, without due cause, takes unfair advantage of, or is detrimental to, the distinctive character or repute of the mark."
The Advocate-General's advisory opinion will now be considered by the full Court, which will deliver a final ruling later this year. If the judges agree with the Advocate-General, it will severely hit Adidas' attempts to restrict the use of stripes on rival clothing products.
EU trademark law does include safeguards to protect established marks against "dilution, degradation or free-riding" And it says that owners of trademarks can ban other companies trading in similar goods using an identical or similar sign "where there exists the likelihood of confusion on the part of the public".
The Advocate-General said the Adidas logo of three "very striking" vertical, parallel stripes of equal width running down the side of articles of clothing was a "strong mark enjoying general recognition". The stripes could be different colours and sizes, but always contrasted with the basic colour of the clothing.
Fitnessworld also markets sports clothes which carry as a motif two parallel stripes of equal width, carried on the side seams of the clothing, contrasting with the basic colour. But today's "opinion" said: "It would be undesirable as a matter of principle to extend the protection of trademarks in such a way as to preclude the use of common decorations and motifs such as stripes".