Marketing expert witness Gabriele Goldaper writes that there are BIG BUCKS IN STRIPES! She represented a leading sports apparel manufacturer which sought a declaratory judgment to allow them to continue to use stripes on their athletic apparel. The defendant took the position that stripes were a part of their trademarked logo and could not be used on any other sports apparel.
My position was that striping is used as an element of design to indicate motion and action and no one can “own” the rights to an “element of design.” Among the elements of design are: “shape”, the outline of the garment, “line”, indicating the direction of visual interest, straight lines are used to create moods and feelings and angled lines are used to suggest motion, “repetition” to create a sense of movement. A successful design is achieved when all the elements work together harmoniously. It was my opinion, supported, with documentation, that stripes, in the past and still today, are used to signal to consumers that a garment is for athletes or those wanting to look like athletes. Stripes have acquired this communicative function.