likelihood of confusion

Adidas Case Informs Importance of Building a Strong Case of Irreparable Harm in Trademark Cases

            The Ninth Circuit’s recent decision in Adidas America, Inc. v. Skechers USA Inc. (2018) reversed a district court’s preliminary injunction concerning Skechers’ use of a design similar to Adidas’ registered three-stripe trademark for sneakers.[1]  Interestingly, the Ninth Circuit accepted the district court’s finding that Adidas was likely to succeed in showing infringement (including a likelihood of confusion), but  reversed the district court’s finding of a likelihood of irreparable harm. This conclusion is simply remarkable given that, until 2006, federal courts generally presumed irreparable harm upon a showing of likelihood of success on a trademark infringement case. 

            The Adidas decision provides important guidance for counsel seeking a preliminary injunction (and by extension, a permanent injunction) as to how to present a convincing case of irreparable harm in a trademark case.  This is especially so in a case (like Adidas) which involves “post-sale confusion.”

[1] The court did affirm a preliminary injunction on a second claim brought by Adidas, for infringement of a different Adidas design for which Adidas has trade dress rights.