You know that stitched arch pattern on Levi jeans’ back pockets — the one that has been around since 1873? Well the denim giant recently went to court to protect the trademarked design from what it called “dilution” by Abercrombie & Fitch, and won (at least this round).
In 2006, Abercrombie started adding a stitched design to the back pockets of its jeans, which it calls “Ruel.” Levi Strauss noticed a similarity with its “Arcuate” design, so it conducted a survey to determine whether others saw a resemblance as well. About 30% of respondents in the survey incorrectly labeled Ruel as Arcuate; this survey later became evidence in Levi’s lawsuit against Abercrombie under the Trademark Dilution Revision Act of 2006 (TDRA). Abercrombie contends that there were flaws in the study, though.
At trial in the Northern District of California, a jury found in favor of Abercrombie, finding that the design was not “identical or nearly identical” to that of Levi’s; the 9th Circuit , however, reversed the decision (PDF), finding that the trial court had provided the jury with the wrong legal standard. Instead, according the 9th Circuit,
The plain language of [the act] does not require that a plaintiff establish that the junior mark is identical or nearly identical or substantially similar to the senior mark in order to obtain injunctive relief. . . . [A] plaintiff must show, based on the factors set forth in [the act], including the degree of similarity, that a junior mark is likely to impair the distinctiveness of the famous mark.
The appellate court remanded the case for further proceedings on the trial court level, which will include a determination based on this articulated version of the trademark statute — and we will find out “how close is too close” under the TDRA.