FASHION LAW
Substance over labels – why the taking of secret commission did not amount to an agency
What the law expects from so-called positional trademarks, and the way such marks must be represented, has been clarified in the recent Court of Appeal judgement in Adidas v Thom Browne. Let’s take a closer look at that case…
W
hen it comes to this Adidas v Thom Browne case, the decision sets out how far a trade mark registration can stretch before it loses the clarity needed to operate effectively, offering timely reminders for footwear and fashion brands generally that rely on visual features placed in consistent locations on clothing and accessories.
A positional trade mark refers to a combination of an element – such as a stripe, logo, or pattern – and its specific placement
on a product. Its distinctiveness lies not simply in the graphic component but in the fixed relationship between that component and a particular point on the goods. When that relationship is applied consistently over time, it can become a recognisable sign in its own right.
For brands, placement often performs a signalling function comparable to a traditional logo. The location of a stripe, for example, running down the side of trousers can act as a shorthand for origin, particularly when
repeated across collections. These placement- led identifiers have therefore become part of the design vocabulary by which brands differentiate themselves and communicate with consumers.
Adidas v Thom Browne Adidas’ dispute with Thom Browne centred on several registrations for three-stripe position marks. These marks specified in their accompanying written descriptions that the stripes appeared along particular parts of
46 • FOOTWEAR TODAY • FEBRUARY 2026
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