The Ninth Circuit's Holding in Levi Strauss v. Abercrombie & Fitch - "Degree of Similarity" Is But One of Six TDRA Factors, Not the Threshold Test -- Marks An Important Decision Elucidating ...


On Monday, February 8, 2011, the Ninth Circuit reversed the United States District Court for the Northern District of California, which had held that Levi Strauss failed to establish by a preponderance of evidence that Abercrombie & Fitch's Ruehl pocket stitching design is likely to cause dilution by blurring of Levi Strauss' famous Arcuate pocket stitching design because it had not established that "[Abercrombie] is making commercial use of a mark that is identical or nearly identical to the [Levi Strauss] Arcuate mark." Compare Levi Strauss v. Abercrombie & Fitch, No. 09-16322, 2011 WL 383972, at *13 (9th Cir. Feb. 8, 2011) with Levi Strauss, No. C07-03752 JSW, 2009 WL 1082175, at *9 (N.D. Cal. Apr. 22, 2009).

The Ninth Circuit held that:

[T]he plain language of 15 U.S.C. § 1125(c) does not require that a plaintiff establish that the junior mark is identical, nearly identical or substantially similar to the senior mark in order to obtain injunctive relief. Rather a plaintiff must show, based upon the factors set forth in § 1125(c)(2)(B), including the degree of similarity, that a junior mark is likely to impair the distinctiveness of the famous mark.

Levi Strauss, 2011 WL 383972, at *13.

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