TRADE DRESS Archives - Martin IP Law Group

BRANDING, COPYRIGHTS, INTELLECTUAL PROPERTY, PATENTS, TRADE DRESS, TRADE SECRETS, TRADEMARKS

Sub-Two: The Intellectual Property Hiding Inside the Shoe That Cracked the Two-Hour Marathon

On Sunday, April 26, 2026, Kenya’s Sabastian Sawe did something most physiologists, coaches, and even Eliud Kipchoge had told us would take another decade. He ran 26.2 miles through the streets of London in 1 hour, 59 minutes, and 30 seconds — the first sub-two-hour marathon ever recorded under legal, record-eligible race conditions. Ethiopia’s Yomif Kejelcha crossed eleven seconds later in 1:59:41, in his marathon debut no less. Two men under two hours, on the same morning, on the same course.

It was a stunning athletic moment. It was also a stunning intellectual property moment. Both runners were wearing the same shoe: the brand-new Adidas Adizero Adios Pro Evo 3. And tucked inside that 97-gram slipper of carbon, foam, and rubber sits a small portfolio of legal rights — patents, trade dress, trademarks, and trade secrets — that helped make the impossible legal, marketable, and protectable.

As an IP lawyer who has spent years counseling product companies on how to wrap protection around physical innovations, I find moments like this irresistible. So let’s walk through what is actually being protected when a shoe like this hits the start line.

Utility Patents: The Science Underfoot

The most important IP layer in a “super shoe” is the utility patent. A utility patent protects how something works — its function — and the Pro Evo 3 is a stack of functional inventions sitting on top of each other.

Adidas has publicized three of them: a new LIGHTSTRIKE Pro Evo foam compound engineered for higher energy return per gram; a carbon-fiber-infused stiffening element seated between the foam and outsole to control flex; and a redesigned forefoot outsole geometry tuned for traction at marathon pace. Each of these is the kind of feature that, in patent terms, can support multiple independent claims. The foam is a composition-of-matter invention. The plate-and-foam architecture is a structural invention. The outsole geometry is a design-for-performance invention. Each can be claimed and prosecuted separately, and each can be licensed, enforced, or designed around independently.

This stacked-claim strategy is the same playbook Nike used a decade ago when its ZoomX foam and Vaporfly carbon plate launched the modern super-shoe era. Nike’s portfolio became so thick that competitors spent years either litigating around it or paying to play. The Pro Evo 3 represents Adidas’s answer: its own patent thicket, built from the ground up, designed to give Adidas the same defensive moat Nike enjoyed at the dawn of carbon-plated racing.

The 40-Millimeter Wall

There is a second, less obvious legal layer: the regulatory ceiling. World Athletics caps the maximum stack height of road racing shoes at 40 millimeters. The Pro Evo 3’s stack is reportedly 39 millimeters — exactly one millimeter under the limit. That is not an accident. It is engineering against a rule.

For an IP lawyer, this is fascinating because it shapes what is worth patenting in the first place. Once the maximum amount of foam is fixed by regulation, the entire arms race shifts to what kind of foam, how it is laid up, and where the carbon goes inside the legal envelope. Innovation gets pushed into chemistry, geometry, and weight reduction — exactly the areas where Adidas is now filing. A men’s size 9 of the Pro Evo 3 weighs 97 grams, roughly 30 percent lighter than its predecessor. That weight reduction, achieved without sacrificing stack height, is itself patentable subject matter.

Trade Dress and Design Patents: The Look of Going Fast

Function is only half the story. The Pro Evo 3 is also visually distinctive — the silhouette of the midsole, the sweep of the outsole lugs, the placement of the three stripes, the colorway used at London. These visual elements are the domain of design patents and trade dress.

A design patent in the United States protects the ornamental appearance of a functional article for fifteen years. Trade dress, protected under the Lanham Act, protects the overall look and feel of a product when consumers have come to associate that look with a single source. If you can glance at a shoe from across the expo hall and instantly say “that’s an Adizero,” that recognition is exactly what trade dress law exists to protect.

Expect Adidas to pursue both. Design patents lock in protection at the moment of launch, before the shoe has built consumer recognition; trade dress takes over once the look becomes famous. Together they give Adidas a way to stop knockoffs that copy the appearance of the Pro Evo 3 without copying the patented technology inside.

Trademarks: The Words That Sell the Speed

Then there are the names. ADIDAS. ADIZERO. ADIOS. LIGHTSTRIKE. PRO EVO. Each is, or can be, a registered trademark. The three-stripe mark on the side of the shoe is one of the most recognized trademarks in the world.

Trademarks do not protect technology — they protect brand. But in the running market, brand is enormously valuable. A consumer who pays $500 for the Pro Evo 3 is paying partly for the science and partly for the story. Sawe’s 1:59:30 just made that story considerably easier to tell, and considerably more expensive to imitate.

Trade Secrets and Sponsorship Rights

Two final layers deserve mention. First, trade secrets. The exact LIGHTSTRIKE Pro Evo foam formulation — the polymer blend, the gas-loading process, the cure schedule — is almost certainly held as a trade secret rather than disclosed in a patent. Patents require public disclosure in exchange for a 20-year monopoly; trade secrets last forever, but only as long as they stay secret. Most shoe companies pursue both, patenting the structural innovations and locking the chemistry behind NDAs.

Second, the athletes themselves are walking IP. Sawe’s and Kejelcha’s name, image, and likeness rights — what U.S. lawyers call rights of publicity — are being licensed to Adidas through endorsement contracts. When a photo of Sawe crossing the line in the Pro Evo 3 ends up on an Adidas billboard, a separate set of contractual and statutory rights is being exercised in addition to the IP baked into the shoe.

Why It Matters

Records like 1:59:30 are not won by shoes alone. They are won by athletes with extraordinary genetics, extraordinary training, and an extraordinary appetite for pain. But they are enabled by a quiet legal infrastructure most fans never see — the patents, designs, marks, and contracts that let a company invest tens of millions of dollars in research and feel reasonably confident it can recoup that investment.

The next time you watch a world record fall, look past the finish line clock. Somewhere in the corporate filings, there is a patent application that helped get the runner there.

Rick Martin is the founder of Martin IP Law Group, where he counsels clients on patent, trademark, and trade-secret strategy for technology-driven products. Nothing in this article is legal advice. If you are evaluating IP protection for an athletic-products innovation, contact the firm directly.

COPYRIGHTS, INTELLECTUAL PROPERTY, PATENTS, TRADE DRESS, TRADEMARKS

Great Halloween Costume — But Does It Infringe? (Updated for 2022)

Halloween is one of our favorite holidays here at Martin IP Law Group. What’s not to like? Spooky decorations, apple cider, pumpkin carving and all of those creative costumes. Like other holidays in the United States, Halloween is big business for retailers. According to the National Retail Federation, total consumer spending this Halloween is projected to reach a new high of $10.2 billion (up from the $9.1 billion in 2017 when this article first appeared in our blog), with 69% of Americans planning to partake in Halloween festivities. With all of that money at stake, it’s no surprise that retailers are increasingly seeking and enforcing the intellectual property rights associated with their Halloween costume designs. Copyright, trademark, trade dress and even patent protection exist for Halloween costumes. Does your costume infringe someone else’s intellectual property?

Creepy Copyrights

In general, Halloween costume designs do not qualify for copyright protection under US Copyright laws because, as clothing, they are considered to be “useful articles”. However, there are two exceptions where copyright protection has been found to apply to Halloween costumes, albeit in a limited way.

The first situation where copyright protection has been found to apply is for masks. In Masquerade Novellty v. Unique Industries, the court ruled that masks qualify for copyright protection because they broadly fall outside the “useful article”. This position was adopted by the U.S. Copyright Office with regard to registrability of masks in 1991. However, as is the case with any other work eligible for copyright protection, a mask must still have a certain required level of creativity to qualify for copyright protection. For example, in Don Post Studios, Inc. v. Cinema Secrets, Inc., a court has held that the iconic Michael Myers mask from the Halloween Movie Series, which by the way I will go out on a limb and predict that it doesn’t actually “End” this year, did not have adequate creativity as it was simply a mold of William Shatner’s head painted white.

Second, while functional elements of a Halloween costume (i.e., arm and neck holes) aren’t eligible for copyright protection, design elements that are “physically or conceptually separate” from the article can be protected. In 2011, SCG Power Rangers LLC had some limited success in a lawsuit against Underdog Endeavors, operators of MyPartyShirt.com, alleging copyright infringement of its Mighty Morphin Power Rangers costume. In 2017, the U.S. Supreme Court weighed in on the “useful article” debate in Athletica v. Varsity Brands. In a 5-2 decision, the Supremes extended copyright protection to cheerleading uniforms, calling into question copyright protection in the costume and fashion worlds. The majority opinion held that when a design can be “identified and imagined apart from the useful article,” it is eligible for copyright protection. Since the cheerleading designs could exist separately from the uniform—say, as a painting—they are subject to copyright protection.

Also, shortly before Halloween in 2017, Rasta Imposta, a New Jersey designer and manufacturer of Halloween costumes sued Kangaroo Manuafacturing (KMART) alleging that it’s Totally Ghoul Banana Men’s Halloween Costume infringed on Rasta Imposta’s copyrighted banana costume design, which was first introduced in 2001 and which K-Mart had previously distributed in its stores. The complaint alleged that K-Mart’s costume “has the same shape as the Banana Design, the ends of the banana are placed similarly, the vertical lines running down the middle of the banana are placed similarly, the one-piece costume is worn on the body the same way as the Banana Design, and the cut out holes are similar to the Banana Design.” In the 2019 decision Silvertop Associates Inc. v. Kangaroo Manufacturing Inc., the court applied the test outlined by the Supreme Court in Athletica and found that the combination of colors, lines, shape, and length (i.e., its artistic features) in Rasta Imposta’s banana costume’s were both separable and capable of independent existence, and thus were copyrightable.

Terrifying Trade Dress

Trade dress generally refers to characteristics of the visual appearance of a product or its packaging that signify the source of the product to consumers. Trade dress protection is intended to protect consumers from packaging or appearance of products that are designed to imitate other products – to prevent a consumer from buying one product under the belief that it is another. In order to make a case for trade secret infringement, a person is required to show that the trade dress is inherently distinctive or has acquired secondary meaning, and the junior user’s use of the allegedly infringing design would be likely to cause confusion among consumers. Rasta Imposta has also asserted claims of trade dress infringement against Kangaroo in that lawsuit. While it would appear from the complaint that Rasta Imposta has a pretty strong argument that K-Mart’s new banana costume is designed to imitate their costume, it does not appear that the court addressed that issue in the Silvertop decision.

Thrilling Trademarks

A trademark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others. Many Halloween costumes, particularly in the superhero arena, depict symbols and/or designs that are protected by the Lanham Act. Most notably, companies like DC Comics (Superman, Batman, Wonder Woman, Green Lantern) and Marvel (Captain America, Iron Man, Thor, Spider Man) use trademark law to protect their comic book characters, symbols and indicia. The primary issue in considering trademark infringement is whether there is a likelihood of confusion as to the source of the goods. Thus, if you are in the business or making or selling costumes, the unauthorized sale of a Batman costume, for example, would likely constitute trademark infringement as the customer would likely believe the costume was somehow endorsed or at least authorized by DC Comics. On the other hand, simply wearing you home made superhero costume would not likely constitute infringement absent some other representation that you are acting on behalf of the trademark owner.
Where a mark is so recognizable that it has acquired “famous mark” status, even in the absence of a likelihood of confusion, a claim could be made that a person wearing a home made or unauthorized costume bearing a trademark is diluting the distinctiveness of the mark. Dilution is the unauthorized use of a strong or famous mark in a way that weakens the distinctiveness of the mark or tarnishes it.

Some costume sellers like to see just how close they can come to infringing on the big Hollywood studio charicatures without being sued for infringement. Take for example the “Juice Demon” costume shown in this photo. Warner Bros. Entertainment owns several registered trademarks to the name Beetlejuice, including Registration No. 4,863,369, which covers the use in “Clothing for men, women and children… and masquerade and Halloween costumes and masks sold in connection therewith”. Clearly, had the seller of the costume shown in this photograph named the costume “Beetlejuice”, there would be a clear cut case of trademark infringement. However, by using the term “Juice Demon” instead, a case of trademark infringement is less clear. In that case, as will all cases of trademark infringement, the ultimate question is whether there is a liklihood that consumers will be confused as to the source of the product.

Petrifying Patents

A limited number of Halloween costumes are also subject to patent protection. U.S. Patent No. 6,904,612 issued to Chosun International is for a weather and climate adaptive Halloween costume. The owner of a patent has the right to exclude all others from making, using, selling, offering to sell or importing the patented invention. The claims of a patent, which appear at the end of the document, determine the legal scope of protection afforded to an invention. Properly drafted claims can provide broad protection resulting in a valuable asset to the owner, while poorly drafted claims can be like flushing money down the toilet.

So what’s a Ghoul to do?

Unless you are in the business of making or selling Halloween costumes, the chances that your costume would be considered an infringement is small. Still not sure? Still uncomfortable? Scared? Email us a picture of you in your Halloween costume and we will give you a FREE OPINION on whether your costume is infringing. Also, if you send us a photograph of your Halloween costume before November 4, 2022, you will be entered in a drawing to win a $50 gift card. Happy Halloween!

BRANDING, INTELLECTUAL PROPERTY, TRADE DRESS, TRADEMARKS

BRANDING MISTAKES – A JUICY TALE

A new seafood and sushi restaurant, The Juicy Crab in Owensboro, Kentucky made a big branding mistake in choosing its name when it opened for business recently.

BRANDING MISTAKES MAY LAND YOU IN BOILING WATER

According to an Owensboro Times article, almost immediately Facebook users were confused as to whether this Juicy Crab was affiliated with a chain of Juicy Crab restaurants based out of Duluth, Georgia. The owner of the Owensboro Juicy Crab apparently relied upon the availability of the name for registration with the Kentucky Secretary of State and the advice of a lawyer (presumably not one that specializes in Intellectual Property and Trademark Law) in adopting the name. Within days of opening, Juicy Crab Owensboro received a cease and desist letter from Juicy Crab Duluth alleging infringement of their U.S. Trademark Registration No. 5,139,205 for THE JUICY CRAB which is registered for use in connection with seafood restaurants.

TRADEMARK INFRINGEMENT AND BRANDING

The owner of a U.S. Trademark has the exclusive right to use the registered name in connection with the goods or services that it is registered for, and for goods or services that are the same or similar. Trademark infringement occurs when there is a liklihood of confusion as to the source of goods or services. Several factors affect whether there is a liklihood of confusion. The two primary factors are the similarity of the marks themselves and the similarity of the goods or services. In the case of Juicy Crab, the two names are identical and the services provide (seafood restaurants) are also identical. In addition, there appears to be actual confusion already and the Owensboro restaurant has only been open a short time. These factors point to an almost certain finding of infringement.

HOW TO AVOID BRANDING TRAPS

So what should a restaurant owner, or anyone opening a new business, do before choosing a name for their business? You should perform a trademark clearance search before registering the name with the state. The clearance search will help to ensure that the name is available for use as you intend to use it. You should engage a professional familiar with the resources needed to find all potentially blocking marks for the search. An experienced trademark attorney should render an opinion based on the search results. Had Juicy Crab Owensboro followed this path, the registration for Juicy Crab Duluth would almost certainly have been found. Knowing this, Juicy Crab Owensboro could have chosen a different name and avoided the conflict. No business owner wants to have to change their brand after the business is up and running. Customers may be confused by the name change and re-branding, which involves new designs, logos, signage, etc. can be expensive. It’s far better to properly vet a name BEFORE you hire someone to design your logo and branding. While there is a cost to doing so, it may just save you money, and your business, in the long run!

MARTIN IP CAN HELP

Are you thinking of starting a business or have started a business and want to ensure that you don’t make the same mistake? Before you spend money on a logo or designs, let us conduct a trademark clearance search to determine if there are any trademark issues with your business name. To protect your juicy brand and to avoid getting a crabby cease and desist letter, contact us to help with choosing, protecting and registering your brand.