Abercrombie Kicks Levi’s Butt in Trade Dress Infringement Trial
By: DEAN R. KARAU
February 2009
United States Trademark Registration No. 1,139,254 is for a simple design, a pentagon with two intersecting arcs inside it.
But Levi Strauss’ famous 133 year-old back pocket pattern has been the focus of legal battles across the nation – around 100 lawsuits since 2001. The company has a team of denim detectives – 40 worldwide – searching in stores and boutiques
United States Trademark Registration No. 1,139,254 is for a simple design, a pentagon with two intersecting arcs inside it.
But Levi Strauss’ famous 133 year-old back pocket pattern has been the focus of legal battles across the nation – around 100 lawsuits since 2001. The company has a team of denim detectives – 40 worldwide – searching in stores and boutiques for blue jeans bearing what they believe to be similar designs.
Companies and jeans Levi Strauss has gone after include:
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Karen Kane |
Jones Apparel |
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Jelessy |
Fossil |
Von Dutch |
Abercrombie & Fitch’s Ruehl brand jeans became the target of another Levi Straus lawsuit in mid-2007.
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Levi Straus jeans |
Abercrombie’s Ruehl jeans |
Designs such as those of Levi Strauss – and Abercrombie & Fitch and others – are protectable under trademark law, as long as they are distinctive enough to help consumers connect the design to a source of a product. However, whether it’s a word mark or a design mark, such as stitching on the back of jeans, the test is the same – will consumers be confused about the source of the product by the simultaneous use of the two marks.
In December 2008, a jury of 10 San Francisco men sitting in Levi Strauss’ backyard took only three hours to apply that test. After viewing a courtroom full of denim, the jury decided that there was no likelihood that consumers would be confused or deceived by Abercrombie’s use of its design on the Ruehl jeans back pocket.
Levi Strauss will likely continue aggressive action in trying to protect its back pocket pattern. But it also will likely continue to butt up against unfriendly juries, unless there really is a likelihood of consumer confusion.