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Levi Continues Eight Year Butt-Squiggly War Against Abercrombie

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By William Peacock, Esq. on June 19, 2013 2:01 PM

For eight long years, Levi Strauss has been battling Abercrombie and Fitch over a design on the back pocket of denim jeans. You're probably familiar with the Levi "v", also known as the "Arcuate" trademark, but few are familiar with Abercrombie's "mirror image stitching design" from their now-defunct post-collegiate Ruehl No.925 line of higher-priced clothing.

Why, despite the death of Ruehl, are they still fighting? We're not sure, but the trademark application is still pending in the PTO, and A&F may release some denim jeans under their Gilly Hicks brand of "knickers from casual to sexy, relaxed PJ's and beauty things" (think lingerie and sweatpants).

So now we face the looming question: Is a butt-squiggle really worth eight years of Wrangler-ing (jean pun!) through the PTO, District Court, the Ninth Circuit, and now, the Federal Circuit?

Apparently so. This must be a very popular butt-squiggle design, though oddly enough, all of the Ruehl No.925 jeans on eBay have a simple horizontal line pattern. Neither design is as haute as thong-jeans, that's for sure.

Way back in 2005, A&F registered their design with the PTO. Levi objected. The PTO proceedings were put on hold, however, when A&F launched Ruehl. Levi then launched a dilution and infringement lawsuit, and their respective law firms launched their calculator apps.

The jury ruled in A&F's favor on the infringement claim. The district court ruled in A&F's favor on the dilution claim, and after an appeal to the Ninth Circuit ... they kept fighting. 

The Ninth Circuit then held that dilution by blurring "does not require identity or near identity of the marks at issue and that the district court's reliance on that erroneous requirement 'affected its dilution determination.'"

On remand ... nothing happened. Ruehl failed, and was shuttered, yet Abercrombie refused to abandon the butt-squiggly design, as they wished to use it on the Gilly Hicks products (N.B. Federal Circuit: It's Gilly, not Gilley).

Levi then voluntarily dismissed the anti-Ruehl lawsuit with prejudice and turned its attention to the still-on-hold PTO proceedings. Abercrombie argued that claim and issue preclusion barred resumption of the proceedings. The Board disagreed on claim preclusion, but granted summary judgment on issue preclusion grounds.

And then another Circuit Court resurrected the fashion fracas. 

There were three judgments in the case: the 2009 dilution judgment, the 2011 dilution judgment, and the 2009 infringement judgment.

The 2009 dilution judgment doesn't exist. The Ninth Circuit vacated it. It has no legal force or significance whatsoever, especially in issue and claim preclusion.

The 2009 infringement and 2011 dilution judgment only involved Ruehl jeans, not the plethora of proposed products in the trademark registration (including skirts, purses, etc.) and therefore can't preclude the PTO proceedings, as they involved a narrower issue than the whole of what the trademark covers. Plus, the 2011 judgment, as a voluntary dismissal, has no issue preclusion effect because the merits weren't litigated.

They fought over the butt-squiggle. Now they'll fight over the squiggle on everything else.

Did we mention that the Federal Circuit ordered costs? Ruehl has cost you enough, Abercrombie! Let. It. Go.

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