H&M wanted to criticize the market leadership effect of the adidas studies with its new studies. Earlier studies of adidas showed convincing figures of confusion: people saw H&M's clothing and thought it came from adidas. How is it that both courts of appeal come to a different conclusion? Apparently, the Court of Appeal of The Hague was convinced by the new market surveys submitted in the last round. And that is why, according to the court, there is no risk of confusion. As a result, there is only a ' very low degree of similarity' between the trademarks. The distance between the stripes on H&M Work Out garments is relevantly smaller than the width of the stripes. The Court of Appeal of The Hague ruled exactly the opposite in January 2020 (appeal of the proceedings on the merits): H&M's two stripe clothing does not infringe the well-known three-striped trademark of adidas. The District Court of The Hague in 2017 (proceedings on the merits) and the Court of Appeal of Arnhem in 2015 (appeal in preliminary injunction proceedings) ruled that H&M's two stripes of clothing infringed the well-known three-striped mark of adidas: there was a likelihood of confusion.
The case started in 2017 with preliminary injuction proceedings, then went all the way to the Supreme Court, to the Court of Justice, again to the Supreme Court and then back to the Court of Appeal of Arnhem, after which adidas started proceedings on the merits before the District Court of The Hague.
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