Adidas believes it found a smoking gun in its ongoing battle with Thom Browne over the designer brand’s use of stripes — enough to warrant a new trial.
According to court papers filed in the U.S. District Court for the Southern District of New York on Thursday, Thom Browne “improperly withheld several e-mail chains in which Thom Browne admits to the ultimate liability issue in this case — a likelihood of confusion between the company’s ‘four bar’ design and Adidas’s three-stripe mark.”
The documentation included four emails between Browne, the company’s chief executive officer Rodrigo Bazan and other executives, discussing the potential confusion it could cause in the market if four bars were used on sport-related products, Adidas alleges.
These “bad faith emails” were all dated between 2016 and 2019, the court papers said, and not disclosed during the discovery period for the original trial.
“Thom Browne’s concealment of these highly relevant — and highly damaging — e-mails denied Adidas a fair trial,” the brief read. “Adidas is therefore entitled to relief under Federal Rule of Civil Procedure 60(b)(2), which provides for relief when a party uncovers evidence that likely would have changed the outcome of trial.”
The emails, Adidas alleged, “undeniably would have changed the outcome of the trial and would have been overwhelmingly probative on critical issues the jury was asked to decide.”
Adidas said the emails did not surface until August, seven months after the trial was completed, when Thom Browne’s lawyers in the U.K. produced them during a separate trademark dispute there involving the same marks and many of the same products, the court papers detailed.
The Adidas brief specifically cited the correspondence between Thi Wan, head of menswear for the company, and Browne. Adidas alleges that in the email, Wan said he “wanted to raise a flag now” that the designs Browne had created for the FC Barcelona soccer club featured four bars and they would “inevitably” be viewed as Adidas since that company “has such a presence in the sporting world.”
The judge has not yet ruled on Adidas’ request and a spokesperson for Thom Browne said its legal team will file a response with the court before Nov. 2.
In January, an eight-person jury in Manhattan Southern District Court came back with a verdict that found the luxury designer was not liable for damages or profits that it made selling product with four stripes or its trademark grosgrain ribbon.
Adidas America and Adidas AG had been seeking damages in the amount of $867,225 — the amount the companies agree it would have received in licensing fees from Thom Browne Inc., if the two had worked together — as well as more than $7 million in profits it alleges the American designer made from selling apparel and footwear with stripes.
