Thrasher prepares to sue H&M for trademark infringement

By

Cassidy Mantor

Published
Feb 17, 2017

Legendary magazine Thrasher has its lawyers on board and is prepared to fight H&M's latest tee design that has a very similar look to the skate publication's iconic flame font.

The trademark dispute arises from a new graphic tee shirt H&M released that says "Trippin" in what appears to be the same font and treatment as Thrasher's flame font mark.

Thrasher has long been the authentic core magazine of skateboarding culture. It is also having a fashion moment, having stepped into the spotlight and even praised by Vogue last year when the publication said, "the [Thrasher] tee has become a rising staple in the model-off-duty wardrobe of any catwalker worth her Instagram following."

Thrasher sent a cease and desist letter to H&M and then headed to Instagram to expose the controversy to its followers and how it was handling its brand protection. It said "respect the original" as it shared H&M's attorneys' response.

H&M legal's response denies any infringement, claiming its design is “an ornamental or a decorative feature.” Interestingly in H&M's response, it does not cite the entire legal test for whether there is infringement or not. Instead it narrowly cites the standard of whether a consumer would be confused by the marks, trying to differentiate the content of the words "Thrasher" from "Trippin," saying that words starting with the same letter is not enough. 

From a legal standpoint, the criteria for a trademark infringement includes the likelihood that a consumer will be confused, but there are also other factors weighing in, including the strength of the mark and whether a consumer would think there is an affiliation between the brands.  

Ultimately the test for infringing will evaluate the strength of the Thrasher font. Thrasher has been in U.S. circulation since 1981 whereas H&M opened its first store in the U.S. in 2000. While there is not a registered trademark for the yellow and red flame font in question, Thrasher has been using that font since 1991 so it will likely receive common law protection for that longevity of commercial use. Thrasher does have a registered trademark for its logo.

Adidas recently made moves to dispute a Tesla logo for one of its car series, but the auto maker quickly backed down. So far, H&M seems to want to pursue the case. Realistically, H&M could remove this particular style with minimal impact to its fast fashion bottom line, and it might still do that quietly after it rides this latest publicity wave to the curb.