The European Union Intellectual Property Office (EUIPO) has confirmed its 2016 decision to uphold Shoe Branding Europe’s invalidity request in relation to Adidas' three-stripe trade mark.

In another chapter of the Adidas saga of three-stripe trade mark litigation, the EUIPO has confirmed its 2016 decision to uphold Shoe Branding Europe’s invalidity request in relation to the Class 25 figurative mark (covering clothing, footwear and headgear).

In its original decision, the EUIPO concluded that the mark lacked inherent distinctiveness; a charge which Adidas did not seek to appeal during these proceedings.

Instead, this appeal centred on Adidas’ assertion that the three-stripe mark had acquired distinctiveness through use. The Board of Appeal re-visited the original 12,000 pages of evidence filed by Adidas. This included numerous exhibits which purported to show the mark in use as well as market surveys from 10 Member States.

Despite the significant volume, the EUIPO commented that the evidence provided “largely consists of exhibits showing marks which are not the mark in question”. As such, the EUIPO was unable to link the “otherwise impressive sales and advertising figures” to the mark in question. Similarly, it raised doubts as to the methodology of the survey data and whether results could be extrapolated to the EU in its entirety.

It concluded that, putting the more famous Adidas logos aside, nothing is known about how intensive, geographically widespread and long-standing use of the mark has been.

The decision provides a strong reminder of the quality of evidence that is expected of an applicant who wishes to rely on acquired distinctiveness, and the fact it needs to be forensically targeted.