CA-2025-000162 - [2025] EWCA Civ 1340

This ground of appeal focuses on what the judge said in [193]. As formulated in oral submissions, it embraces two arguments. First, adidas argues that this is inconsistent with what the judge said at [181]. The short answer to this argument is that there is no inconsistency.

Secondly, and more importantly, adidas contends that the judge was wrong to interpret the written description in Tracksuit Top Mark 588 as embracing stripes on the underside of the sleeve. adidas also contends that, even though the judge did not make the same or a similar comment in relation to any of the other Trade Marks, this error infected her reasoning with respect to all six Trade Marks, because, even though she considered each Trade Mark individually and gave separate reasons in relation to them, she referred back to her reasoning in relation to in Tracksuit Top Mark 588.

Whether or not the judge was right to go so far as to say that the stripes could be on the underside of sleeve or not, it seems to me that the general point she was making was correct. As I have already noted, it is adidas’ own case that what is shown in the pictorial representation is merely an example of what is claimed in the written description. The written description simply says “the stripes running along one third or more of the length of the sleeve of the garment”. As TB submitted, that description not only encompasses variability in the starting points, ending points and length of the stripes, it also encompasses variability in their position upon the sleeve. Even if not on the underside of the sleeve, the stripes could be forward-facing, sideways-facing or rearwards-facing or any gradation between those positions, particularly in cases where the stripes only extend along part of the length of the sleeve.

Even if the judge was wrong to interpret the written description in Tracksuit Top Mark 588 as embracing stripes on the underside of the sleeve, any such error was immaterial. What the judge said in [193] was in the nature of an additional observation. It was not part of her essential reasoning, which was all about variations of the kind shown in the illustrations she reproduced from the Cancellation Division’s decision. [193] could be omitted from her judgment and the reasoning would be unaffected. This is confirmed by the fact that she did not make the same or a similar observation in relation to the other Trade Marks.