It’s not important how Adidas discovered the “smoking gun” emails it unearthed regarding Thom Browne’s use of stripes. But the fact that they exist at all warrants a new trial.
That was the response of the attorneys for Adidas in its ongoing battle with the designer over the use of stripes in his athletic-inspired offering.
As reported, Judge Jed Rakoff of the Southern District of New York has scheduled a hearing between the two parties on Dec. 21 to hear arguments devoted to intent in the discovery of several emails that surfaced following a jury decision earlier this year.
Adidas sued Browne for using four stripes on some of the American designer’s active-inspired merchandise, saying it created confusion with the sports brand. The designer had been using stripes on his collections for many years to reference collegiate varsity sweaters, but, after being approached by Adidas in 2007, agreed to change the design to four parallel bars. Adidas has been using its three-stripe bar in the U.S. since the 1950s and spends $300 million a year in advertising the stripes, and products sporting the mark account for $3.1 billion in annual sales.
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In January, an eight-person jury in Manhattan’s Southern District came back with a verdict that found Browne was not liable for damages or profits that it made selling products with four stripes or its trademark grosgrain ribbon.
Adidas in October discovered four emails that it characterized as “bad faith” from employees who cautioned the designer about using specific stripe designs in its collections because they could potentially create confusion with Adidas. The emails surfaced in August during a separate trademark dispute between the two companies in the U.K. but were not disclosed during the initial trial.
Browne’s legal team on Friday said “Adidas’ hands are not clean” — alleging the sports brand breached a U.K. confidentiality agreement by sharing the emails with the company’s U.S. counsel much earlier than it had originally disclosed.
In response, Adidas’s attorney wrote: “For Thom Browne, there is no escaping the fact that it withheld smoking-gun evidence and got caught.” The company’s argument about when Adidas found the emails is irrelevant, it claimed. “Thom Browne asks the court to ignore its own egregious misconduct and focus instead on how that egregious misconduct was brought to light. The court should deny that unjust request and reject Thom Browne’s meritless ‘unclean hands’ argument.”
The filing went on to say that while Adidas’ attorney admitted the company had seen the emails earlier than it originally acknowledged, that breach was “inadvertent and harmless,” opening the door for a new trial.