Background to the case
- adidas sued Thom Browne in the U.S. (and is continuing to pursue related litigation) over Thom Browne’s “four‑bar” stripe design, alleging it infringed adidas’s iconic “three‑stripe” mark. A jury in the U.S. found in favour of Thom Browne. (Vogue Business)
- In the U.K., Thom Browne counter‑sued adidas seeking declarations of invalidity or revocation of several of adidas’s “three‑stripe” position trade‑marks. The High Court (Mrs Justice Joanna Smith) in December 2024 found that eight of adidas’s position marks were invalid for lack of registrability. (Courts and Tribunals Judiciary)
- On appeal, the Court of Appeal (23 Oct 2025) upheld the High Court’s decision, dismissing adidas’s appeal regarding six of its position marks. (oeclaw.co.uk)
- Parallel proceedings in the U.S. also continue. In one appeal, adidas argues that Thom Browne should not have prevailed because the designer failed to produce key internal emails during discovery. (news.bloomberglaw.com)
The “email error/misconduct” issue
- At the heart of the appeal in the U.S. (before the Second Circuit) is adidas’s argument under Federal Rules of Civil Procedure 60(b)(2) and 60(b)(3) that Thom Browne’s non‑production of four internal emails constituted misconduct (Rule 60(b)(3)) or at least improper non‑production/negligence. (The Fashion Law)
- Adidas’s position:
- The four emails were identified and flagged for review during discovery (by Thom Browne’s counsel and their e‑discovery vendor) but were never reviewed or produced. (The Fashion Law)
- The content of at least one of the emails includes a statement by a Thom Browne senior‑executive that, given adidas’s dominance in sportswear, “it is inevitable that our four‑bar in white be read as adidas stripes” (at least on accessories). Adidas says this would have been powerful impeachment evidence. (The Fashion Law)
- Because of this non‑production, adidas argues the 2023 jury verdict and the subsequent defence should be reopened under Rule 60(b)(3) (fraud, misrepresentation, or misconduct) rather than Rule 60(b)(2) (newly discovered evidence). It argues that to allow mere negligence to count as misconduct would blur the lines and allow “disguise” of one avenue under another. (The Fashion Law)
- Thom Browne’s position:
- The company argues that “misconduct” should require intent or recklessness, not simple inadvertent or negligent non‑production. They say they used a reputable vendor, had a manual “to‑be‑reviewed” list, and the non‑production was an understandable oversight among a large volume of documents. (The Fashion Law)
- They argue that the withheld emails (even if produced) would unlikely have changed the outcome — the jury’s verdict turned on visual comparison of designs and experts’ testimony rather than those emails. The district judge (Judge Jed Rakoff) found the emails marginal and declined relief under Rule 60(b). (The Fashion Law)
Legal / procedural significance
- The key legal question: Does non‑production of documents amount to “misconduct” under Rule 60(b)(3)? And if so, what level of culpability is required — simple negligence, recklessness, or intentional suppression? The appellate court panel pressed both sides on this question. (The Fashion Law)
- The judges in the oral argument (Second Circuit) asked: if mere negligence qualifies as “misconduct”, then many discovery mistakes could be recast under 60(b)(3) and would bypass the stricter standard of 60(b)(2). That could undermine finality of judgments. (The Fashion Law)
- One judge asked pointedly: if the documents were flagged for review yet never reviewed, “if that’s not negligence, what is?” This underlines how the court is grappling with the boundary. (The Fashion Law)
- The outcome of the appeal will inform how strictly future litigants must treat discovery obligations, especially large e‑discovery volumes where oversight might be claimed.
Implications for the brands
- For adidas: If they succeed in showing misconduct, they may reopen the case and potentially get a new trial or other relief. This could challenge Thom Browne’s victory or put pressure on settlement. It underscores adidas’s determination to protect the three‑stripe mark.
- For Thom Browne: The dispute underscores how even frivolous‑looking design differences (four bars vs three stripes) can turn into intense multi‑jurisdiction IP battles. The potential exposure of internal emails could raise reputational risk and increase cost of litigation.
- For IP practitioners: The case highlights the importance of discovery compliance, document production, e‑discovery vendor oversight and internal review. Even luxury fashion litigation is subject to the same procedural rigour as tech or pharma disputes.
- For brand strategy: The case signals that large brands will push aggressively to defend icons (three stripes) and that challengers (Thom Browne) must not only win on substance (design difference) but also on procedural cleanliness.
Bottom‑line summary
Adidas’s current appeal centres not on the core question of infringement (that has been decided against them in multiple jurisdictions) but on procedural grounds: namely, the non‑production of internal emails by Thom Browne. Adidas argues this failure constitutes misconduct under Rule 60(b)(3), warranting reopening of the verdict. Thom Browne counters that the failure was inadvertent, the withheld emails marginal, and the verdict stands. The appellate panel is grappling with how to define “misconduct” in the context of large‑scale document review.
Here are detailed case‑studies of the dispute between adidas and Thom Browne focusing on the emails/non‑production issue, followed by commentary on what it implies for IP litigation, discovery practices and brand strategy.
Case Study 1: U.S. Litigation – Email Non‑Production & Rule 60(b) Appeal
Facts
- In the U.S., adidas sued Thom Browne claiming infringement of the “three‑stripe” mark by Thom Browne’s “four‑bar” design. A jury found in Thom Browne’s favour. (AP News)
- After the verdict, adidas sought relief under Federal Rule of Civil Procedure 60(b). They alleged that Thom Browne failed to produce four internal emails during discovery—even though those emails had been collected/flagged for review by Thom Browne’s e‑discovery vendor. (The Fashion Law)
- The content of one key email: a senior Thom Browne executive allegedly wrote that given adidas’s dominance in sportswear, “it is inevitable that our four‑bar in white be read as adidas stripes,” at least on accessories. That, adidas argues, constitutes powerful impeachment evidence. (The Fashion Law)
- The court (Judge Jed Rakoff) found that although the emails were relevant, adidas had not shown that they “probably would have changed the outcome of the trial” and did not find sanction‑worthy misconduct. (sdnyblog.com)
- On appeal before the Second Circuit, adidas’s argument: The non‑production amounted to misconduct under Rule 60(b)(3) (“fraud, misrepresentation, or misconduct by an opposing party”) rather than simple negligence under 60(b)(2) (“new evidence”). They contend the difference matters because 60(b)(3) is not subject to the same “new evidence likely to change verdict” threshold. (The Fashion Law)
- Thom Browne’s counter‑argument: “Misconduct” requires at least recklessness or intentional suppression, not mere inadvertent oversight. They argue that in large‑scale e‑discovery, mistakes happen and that the jury’s verdict turned on visual design comparison, not those emails. (The Fashion Law)
Why this matters
- It is a vivid example of how discovery‑process issues (not just core liability issues) can become central to high‑stakes brand litigation.
- It shows the interplay between procedural relief (60(b)) and substantive claims (infringement). Even if the core claim failed, adidas is using procedural grounds to seek a rehearing.
- The nature of the withheld emails (internal recognition of “inevitable confusion” or acknowledgement of risk) demonstrates how brands must manage internal communications carefully—especially when litigation is ongoing or likely.
- For IP practitioners: the case highlights how failure to produce internal documents—even if “mistaken” or “inadvertent”—can lead to attempts to reopen verdicts and deepen legal cost/risk.
Case Study 2: UK Litigation – Position Marks & Broader Brand Strategy
- In the UK, Thom Browne challenged adidas’s “three‑stripe” position marks (marks where the stripes are applied in certain positions on garments) and succeeded: the High Court declared eight registrations invalid for lack of clarity/precision. (The IPKat)
- The Court of Appeal dismissed adidas’s appeal of six of those invalidations on 23 October 2025, upholding the principle that a trade mark must be “clear, precise and objectively ascertainable” and that adidas’s mark descriptions allowed a multiplicity of signs. (oeclaw.co.uk)
- While the email discovery issue is principally in the U.S. litigation, the UK outcome affects adidas’s global enforcement strategy and demonstrates how brand‑icon claims (three stripes) can be vulnerable if registrations are not tightly defined.
Why this matters
- It evidences the global dimension of brand‑protection litigation: what happens in U.S. and UK courts both impacts brand strategy, cost, global enforcement risk.
- The UK decision puts brands on notice that position marks (e.g., stripes on garments) must be narrowly defined and described — mere fame does not suffice if the mark is vague.
- Combined with the U.S. procedural dispute, it shows brands must manage both substantive and procedural risks: internal communications, discovery processes, and registration precision all matter.
Comments & Reflections
Key Observations
- Discovery and internal communications are increasingly critical in brand‑litigation: a line such as “it is inevitable that our four‑bar … be read as adidas stripes” is gold for an opponent’s case and must be carefully managed.
- Procedural remedies (e.g., Rule 60(b)) can offer brands a back‑door attempt to relitigate adverse outcomes — so courts will expect robust document production and vendor oversight.
- Brands with iconic marks may be tempted to rely on fame alone — but the UK decision reminds that careful registration drafting (clear description + image) remains fundamental.
- For challengers/defendants (like Thom Browne), the case illustrates how disciplined record‑keeping, review processes, and clear differentiation (four bars versus three stripes) can yield success.
Caveats & Risks
- Even major brands can stumble on procedural matters — adidas’s focus on the email error shows how process can undermine otherwise strong substantive cases.
- Expanding “misconduct” definitions in discovery (to include negligence) could open floodgates of post‑trial applications; courts grapple with balancing finality and fairness. (“One judge asked: if documents were tagged and never reviewed, ‘if that’s not negligence, what is?’” (The Fashion Law) )
- Brands must consider reputational risk: aggressive use of procedural tactics, and internal memos acknowledging risk of confusion, may impact public brand narrative (especially in luxury/fashion).
- Global brands must coordinate across jurisdictions: what’s valid in one country (mark registration) may be invalid elsewhere; discovery obligations differ (U.S. vs UK data‑requests, e‑discovery volumes).
Strategic Takeaways for Brands & Legal Teams
- Maintain rigorous internal‑communication protocols: emails/internally documented risk assessments, strategy discussions should assume potential future disclosure.
- Vendor management: If your brand uses e‑discovery vendors, archive systems, document‑review workflows — ensure high reliability, cross‑checks and audits.
- Registration drafting: For position marks or sensor marks (stripes, bars, etc), ensure descriptions and images tightly defined. Avoid “one‑third or more of the sleeve” ambiguity (which was a key problem for adidas in the UK). (ICLG Business Reports)
- Global enforcement strategies: Recognise that litigation will play out in multiple jurisdictions; coordinate registration, enforcement and discovery strategies globally — e.g., U.S. process, UK invalidity challenges, cross‑border consistency.
- Risk mitigation: When litigating iconic marks, include risk modelling for procedural exposure (discovery missteps), not just substantive liability. Prepare for appeal‑based procedural challenges.
Final Summary
The adidas‑Thom Browne dispute is more than a stripes‑vs‑bars design fight. It is a rich example of how discovery process, internal communications, registration precision, and global litigation strategy all intersect in modern brand enforcement. The email “mistake” (or non‑production) may seem a small part of the dispute, but it has the potential to reopen entire cases under misconduct/relief rules. For brands, the lesson is clear: you must treat procedural and document‑governance risks with the same seriousness as your substantive mark‑strategy.