## Facts

- Adidas-Salomon AG and Adidas Benelux BV owned well-known “three-stripe” trade marks used on sports clothing and footwear.
- Fitnessworld Trading Ltd marketed sportswear under the sign “Perfetto,” including garments bearing two parallel stripes on the side of a leg or sleeve in a placement similar to Adidas’s stripe branding.
- Adidas alleged Fitnessworld’s two-stripe motif took unfair advantage of, or was detrimental to, the distinctive character or repute of Adidas’s reputed marks under Article 5(2) of Directive 89/104/EEC.
- Fitnessworld argued the stripes were perceived merely as a decorative feature and that Article 5(2) protection required likelihood of confusion rather than mere association.
- The Dutch Supreme Court (Hoge Raad) referred interpretive questions to the Court of Justice of the European Communities for a preliminary ruling.

## Issues

1. When a Member State implements Article 5(2) of Directive 89/104, must the protection for reputed marks apply only to dissimilar goods/services, or also to identical or similar goods/services?
2. Under Article 5(2), must the similarity between the mark and the later sign create a likelihood of confusion, or is it sufficient that the public establishes a link between them?
3. Is Article 5(2) protection excluded if the relevant public views the later sign as a decorative embellishment?

## Decision

- The Court held that if a Member State implements Article 5(2), it must provide protection for reputed marks against use of identical or similar signs both for dissimilar goods/services and for identical or similar goods/services.
- The Court held Article 5(2) protection is not conditional on likelihood of confusion; it is enough that the degree of similarity causes the relevant public to establish a link between the sign and the reputed mark.
- The Court held that perceiving a sign as an embellishment does not by itself preclude Article 5(2) protection if the public nonetheless establishes the required link.
- The Court indicated Article 5(2) would not apply where, on the facts, the public views the sign purely as decoration and does not establish any link to the reputed mark.
- The matter was returned to the referring court to apply these interpretive rules to the infringement dispute, including whether unfair advantage or detriment was shown.

## Legal Principles

- Once implemented, Article 5(2) requires Member States to protect marks with a reputation from use of identical or similar signs for both similar and dissimilar goods/services.
- Article 5(2) addresses harms distinct from confusion-based infringement, including detriment to distinctive character (dilution), detriment to repute (tarnishment), and unfair advantage (free-riding).
- The threshold condition under Article 5(2) is a global assessment of whether the relevant public establishes a link between the sign and the reputed mark; likelihood of confusion is not required.
- Consumer perception that a sign is decorative does not automatically bar relief; the decisive question remains whether the sign calls the reputed mark to mind and the challenged use is liable to cause the specified harms.

## Conclusion

The Court interpreted Article 5(2) to provide broad protection for reputed trade marks: it applies even to similar goods, does not require confusion, and can reach decorative uses when consumers still make a link to the reputed mark and the use is liable to cause unfair advantage or detriment.


Adidas-Salomon AG v. Fitnessworld Trading Ltd., Case C-408/01, 2003 E.C.R. I-12537 (C.J.E.U. 2003)