## Facts

- adidas sued Skechers in the District of Oregon alleging (1) the Skechers “Onix” shoe infringed and diluted the unregistered trade dress of adidas’s “Stan Smith” shoe and (2) the Skechers “Cross Court” shoe infringed and diluted adidas’s federally registered “Three-Stripe” mark.
- The Stan Smith is a long-selling low-top tennis shoe associated with adidas; adidas claimed trade dress consisting of a white leather upper, three rows of perforations replacing stripes, a green heel tab, and an overall shape/design consumers associate with adidas.
- The Onix was a low-top sneaker that the district court found closely resembled the Stan Smith, describing it as a knockoff.
- adidas’s Three-Stripe mark is a long-used, registered, and widely recognized brand identifier.
- The Cross Court displayed three stripes on its side; prior dealings included Skechers’s acknowledgment of adidas’s ownership of the Three-Stripe mark and an agreement not to use it.
- The district court granted a preliminary injunction barring sales of both shoes, finding likely success on the merits and likely irreparable harm.
- Skechers appealed the preliminary injunction.

## Issues

1. Whether the district court abused its discretion in finding adidas likely to succeed on the merits of (a) unregistered trade-dress infringement as to Onix/Stan Smith and (b) trademark infringement and dilution as to Cross Court/Three-Stripe.
2. Whether adidas showed a likelihood of irreparable harm absent preliminary relief for each challenged shoe, as required under the post-eBay/Winter preliminary-injunction standard.
3. Whether the balance of equities and public interest supported preliminary injunctive relief.

## Decision

- The Ninth Circuit affirmed the preliminary injunction as to the Onix shoe.
- The court held the district court did not abuse its discretion in concluding adidas was likely to succeed on trade-dress infringement and had shown likely irreparable harm to the Stan Smith’s goodwill and brand image.
- The Ninth Circuit reversed the preliminary injunction as to the Cross Court shoe.
- Although the court accepted that adidas was likely to succeed on infringement and dilution claims concerning the Three-Stripe mark, it held adidas did not provide sufficient evidence of likely irreparable harm from Cross Court sales.
- Judge Clifton concurred as to Onix but dissented from reversal as to Cross Court, concluding the district court’s irreparable-harm finding deserved deference.

## Legal Principles

- A preliminary injunction requires proof of (1) likelihood of success on the merits, (2) likelihood of irreparable harm absent relief, (3) a favorable balance of equities, and (4) consistency with the public interest.
- In Lanham Act cases, irreparable harm is not presumed from likely success on infringement or dilution; the plaintiff must present evidence showing irreparable injury is likely.
- Unregistered trade dress is protectable upon a showing that the claimed trade dress is (1) nonfunctional, (2) distinctive through secondary meaning, and (3) likely to cause consumer confusion when copied.
- Evidence supporting irreparable harm may include likely loss of control over reputation and goodwill and likely harm to brand image that is difficult to measure in damages; generalized assertions are insufficient where the record does not show concrete, noncompensable injury.

## Conclusion

The Ninth Circuit allowed a preliminary sales ban on Skechers’s Onix shoe because adidas made a supported showing of likely trade-dress infringement and likely irreparable harm to the Stan Smith’s goodwill, but it vacated the injunction against the Cross Court despite likely trademark infringement and dilution because adidas did not adequately prove irreparable harm as to that shoe.


adidas Am., Inc. v. Skechers USA, Inc., 890 F.3d 747 (9th Cir. 2018)