Brussels Court of Appeal held Signature Yellow Stitching of Dr. Martens to be distinctive

Airwair International Ltd. ("Airwair"), the company behind Dr. Martens footwear, holds multiple Benelux trademarks in Class 25 protecting key design features of its iconic boots, including the yellow stitching that joins the upper to the sole, the distinct sole pattern, and the "resistance rectangle" figurative mark. In 2020, Airwair sued Retail Distributions Concepts BV ("Redisco") for selling allegedly infringing footwear. Redisco countered by arguing that Airwair's marks lacked the requisite distinctiveness and that its own products were sufficiently different. This dispute went to the Brussels Court of Appeal (CoA) after the first instance court had already invalidated Airwair's sole pattern mark, setting the stage for a critical examination of non-conventional trademark protection for footwear design.

The Brussels Court of Appeal (“CoA”) was required to determine whether Airwair’s registered marks were valid and whether Redisco’s use of similar signs constituted trade mark infringement. Specifically, the court examined whether the sole pattern mark was capable of functioning as a trade mark and whether Redisco’s footwear infringed it, whether the yellow stitching shape mark was valid and infringed, and whether Redisco’s use of a figurative mark similar to Airwair’s “resistance rectangle” mark amounted to infringement under the Benelux Convention on Intellectual Property (BCIP).

The CoA ultimately ruled in Airwair's favour, finding infringement on multiple grounds. Regarding the yellow stitching, the court acknowledged that while it may initially lack inherent distinctiveness, it had acquired strong distinctiveness through Airwair's extensive use, market recognition, and substantial advertising. The court found that footwear with noticeable differences, such as non-yellow or thinner stitching, would not infringe. However, for the visually similar stitching used by Redisco, the court confirmed a likelihood of confusion. The CoA also upheld the sole pattern mark, noting that such patterns are used by well-known brands to indicate commercial origin. Infringement was thus established for both marks under Article 2.20(2)(b) BCIP.

The Court of Appeal upheld Airwair’s sole pattern and yellow stitching shape marks as distinctive and found infringement where there was a likelihood of consumer confusion. Differences in sole patterns and stitching details may prevent infringement if noticeable to the relevant consumer. The figurative mark is also protected, including both its visual and textual elements. However, certain inconsistencies in the court’s reasoning were observed, particularly regarding how minor differences in stitching colour or thickness could influence the perception of confusion. Overall, the decision reinforces the protection of distinctive elements of well-known footwear brands while acknowledging the limits of infringement in cases of noticeable differences.