First High Court Judgement in the UK on Copyright Claims Relating to Use of Works in AI Training and Outputs

The recent Court of Appeal decision in Thom Browne Inc v Adidas AG 2025 has sent a clear message to anyone relying on simple, repeated design elements, to protect their brand.

Adidas appealed the High Court’s ruling which had declared six of its UK-positioned trade marks as invalid. The Court of Appeal has now upheld that outcome and its reasoning gives important guidance for fashion, sportswear and any business that uses “position marks” in its branding. Tania Ross and Dylan Hooper from our Commercial & Intellectual Property team have examined the ruling and its implications for businesses.

What the case was about:

Adidas had secured several trade mark registrations for the three parallel stripes applied to sleeves, trouser legs and the sides of garments. The luxury clothing brand Thom Browne’s use of four stripes on sportswear led to various disputes between the parties over a number of years and in different jurisdictions. In relation to the English 2024 high court judgment, subject of the recent appeal, Adidas objected to the high court’s decision to invalidate six of Adidas’s trade mark registrations. Both courts focussed on whether Adidas’ position marks were clearly and precisely defined.

The six marks all combined a simple line drawing with a written description, often using the wording the stripes run along “one third or more” of the sleeve or garment. The position, start point and end point of the stripes were not fixed. The judgment noted that this allowed a broad range of possible signs, many of which were not shown in the drawings on the register.

Why the marks failed:

The Court of Appeal agreed that the marks did not meet the basic requirement of representing a single identifiable sign. Instead, the mark specifications created a “multiplicity of signs” because the stripes could begin, end or sit in many different places on the garment, including multiple angles or proportions. The judgment even illustrates how differently the marks could appear depending on the length, placement or angle of the stripes. The judgment stated that the trade mark was invalid as it was insufficiently clear, intelligible, precise, specific and accessible to be registered as a trade mark. The Court confirmed that position marks rely heavily on where the element sits on the product. If that position is not clearly and precisely defined, the mark does not meet the legal requirements.

Valid Trade Marks:

By comparison, the trade mark registration for Adidas shoes was deemed to be valid as it was clearly described and the mark drawing showed exactly where the stripes should be on the shoe. The wording used was “the mark consists of three parallel equally spaced stripes applied to footwear, the stripes positioned on the footwear upper in the area between the laces and the sole”. Embodying the level of specificity required to qualify for registered trade mark protection .

What this means in practice:

For brand owners, the decision highlights several important points:

• Simple motifs like stripes, tabs or colour bands may face a higher bar when the mark depends on where it appears on the product.
• Descriptions that allow for flexible placement or varying lengths risk falling into the “multiplicity” trap.
• A pictorial representation must work alongside the written wording in the trade mark application to show exactly what is claimed – not merely an example with scope for many alternatives.
• As for all registered trade mark applications, care needs to be taken when preparing the application to ensure the registrability requirements are satisfied.

Following the Supreme Court decision made in SkyKick v Sky 2024, the UK IPO issued a Practice Amendment Notice to amend the trade mark examination process to provide examiners with a wider scope to challenge and object to applications on the grounds of bad faith. Examiners are now able to object to broad or vague trade mark specifications. The Practice Amendment Notice and the Court of Appeal guidance in Thom Browne v Adidas further emphasises how important it is for brand owners to ensure they have precision, clarity and justification for the description of their mark and specification of goods/services included within an application to register a trade mark.

Filing strategies that matter now more than ever:

Anyone considering filing a position mark will need to revisit how tightly their descriptions are drafted. From the Court’s comments, the following steps seem essential:

• Fix the position clearly and avoid wording that allows for different start or end points
• Ensure drawings match the wording precisely
• Consider filing multiple narrower marks rather than one broad one
• Gather evidence of distinctiveness early, especially where the visual element is simple

Why this decision will shape brand protection going forward:

The Court’s approach reinforces that the register must not give broad or uncertain monopolies. This is especially important where simple design features are common in the market. For Adidas, the problem was not the power of the three stripes as a brand. It was the wording in the registrations themselves, which created too much room for flexibility.

For brands seeking to protect their visual identity, this case is a reminder that careful drafting at the point of filing is crucial. A strong brand story cannot fix an unclear trade mark.

Conclusion:

The judgment is a valuable prompt for brand owners to review any existing position marks and assess whether they remain defensible. For new filings, precision is essential. The Thom Browne decision has not weakened protection for distinctive design features, but it has made clear that if you want to rely on a position mark, you must define it without leaving the public guessing. It is essential for brand owners to document their commercial intentions and have a system in place to continually retain evidence in relation to the trade mark applications being lodged. A trade mark is seen as a badge of origin. Unless Adidas, or other brand owners, provide specific and precise filings, there is a likelihood that these applications will be challenged by the UK IPO in future.