Skechers denied trademark for heel design: cushioning visible, not distinctive

Who doesn’t remember them?

Around the year 2000, they were suddenly everywhere: kids' shoes with glitter, bright colors and – of course – lights in the soles. Skechers made a name for itself with playful, eye-catching designs that stood out from the crowd. Today, the brand still holds a strong market position, known for its comfortable and stylish footwear.

Recently, Skechers USA submitted a European application for a position trademark related to footwear:

A position trademark refers to a mark consisting of the specific placement of a distinctive element on a product. Such trademarks, especially on sneakers, are rarely approved because they often lack of distinctiveness.

In this case, the application concerned a triangular shape near the heel area of the sole, featuring textured horizontal grooves, a horizontal groove within the triangle, and visible cushioning units.

The European Union Intellectual Property Office (EUIPO) rejected the application. According to the Office, sporty footwear commonly includes transparent windows showing cushioning structures for both aesthetic and functional purposes, aimed at performance and comfort. Major brands like Nike use similar features. Geometric shapes in midsoles are typically seen as decorative or functional rather than as indicators of brand origin. In short, the design doesn’t stand out within the industry and lacks distinctive character.

Skechers argued that the placement of the mark on the heel was unusual. However, the EUIPO countered in appeal that consistently placing a design in a fixed spot on a product is not enough on its own. A trademark must have clear and unique features that lead consumers to recognize it as an indicator of origin. In this case, the Office found that the design did not sufficiently differ from typical elements used in the footwear industry.

A combination of geometric shapes, grooves, and visible air cushions is not uncommon – and therefore not inherently distinctive.

Author: Erwin Haüer

Bio: Erwin is a trademark attorney and, as the managing partner, in charge of IT and Information Management. He works extensively with startups and scale-ups, while his clientele also includes numerous multinational corporations. Erwin possesses a sharp wit and a keen eye for remarkable trademark news and curious brand infringements.