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Decision 9th Cir Levis Abercrombie Dilution

Decision 9th Cir Levis Abercrombie Dilution

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Published by mschwimmer
decision, ninth circuit, dilution, levis abercrombie
decision, ninth circuit, dilution, levis abercrombie

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Published by: mschwimmer on Feb 09, 2011
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02/09/2011

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FOR PUBLICATION
UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT
L
EVI
S
TRAUSS
& C
OMPANY
,
Plaintiff-Appellant,
No. 09-16322v.D.C. No.
3:07-cv-03752-JSWA
BERCROMBIE
& F
ITCH
T
RADING
C
OMPANY
,OPINION
 Defendant-Appellee.
Appeal from the United States District Courtfor the Northern District of CaliforniaJeffrey S. White, District Judge, PresidingArgued and SubmittedJune 16, 2010—San Francisco, CaliforniaFiled February 8, 2011Before: Kenneth F. Ripple, Senior Circuit Judge,*PamelaAnnRymer and RaymondC.Fisher, Circuit Judges.Opinion by Judge Ripple
*The Honorable Kenneth F. Ripple, Senior United States Circuit Judgefor the Seventh Circuit, sitting by designation.
2369
 
COUNSEL
Gregory S. Gilchrist, Townsend & Townsend & Crew, SanFrancisco, California, for the plaintiff-appellant.J. Michael Keyes, K & L Gates, Spokane, Washington, for thedefendant-appellee.David H. Bernstein, Debevoise & Plimpton, New York, NewYork, for
amicus curiae
International Trademark Association.
OPINION
RIPPLE, Senior Circuit Judge:Levi Strauss & Co. (“Levi Strauss”) seeks review of a dis-trict court judgment that Abercrombie & Fitch Trading Co.
2372L
EVI
S
TRAUSS
v. A
BERCROMBIE
& F
ITCH
 
(“Abercrombie”) did not dilute Levi Strauss’s trademarked“Arcuate” design in violation of the Trademark Dilution Revi-sion Act of 2006 (“TDRA”), 15 U.S.C. §1125(c). LeviStrauss maintains that the district court applied an incorrectlegal standard in evaluating its dilution claim, namely that the junior mark be “identical or nearly identical” to the seniorone. We agree with Levi Strauss that the “identical or nearlyidentical” standard did not survive Congress’s enactment of the TDRA and that the district court’s use of the incorrectstandard was not harmless error. Accordingly, we reverse the judgment of the district court and remand the case for furtherproceedings consistent with this opinion.
BACKGROUNDA.The Stitched Designs
Levi Strauss created, and began selling, blue jeans in the1870s. Since 1873, the company has stitched the back pocketof its jeans with two connecting arches that meet in the centerof the pocket; Levi Strauss holds a federally registered trade-mark on this “Arcuate” design. Sales of garments bearing theArcuate mark have accounted for more than ninety-five per-cent of Levi Strauss’s revenue over the past thirty years, total-ing roughly fifty billion dollars. Levi Strauss activelymonitors use of competing stitching designs and enforces itstrademark rights against perceived infringers.In 2006, Abercrombie began using a stitching design on theback pockets of its jeans that, according to Levi Strauss, “in-corporates the distinctive arcing elements of the Arcuatetrademark.” Appellant’s Br. 4. Abercrombie’s “Ruehl” designconsists of two less-pronounced arches that are connected bya “dipsy doodle,” which resembles the mathematical sign forinfinity. The design on the Abercrombie jeans sits lower onthe pocket than Levi Strauss’s Arcuate design.**
**Images of the “Arcuate” and “Ruehl” designs appear at the end of this opinion.
2373L
EVI
S
TRAUSS
v. A
BERCROMBIE
& F
ITCH

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