Trademark Law and Practice, Pages 184–190

Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co.

United States Court of Appeals for the Second Circuit, 1986

Facts:

Appellee Levi Strauss has an incontestable federal trademark on its iconic back pocket stitching pattern. Appellant imported jeans with an almost identical stitching patten on them, but with their own branding otherwise.

Procedural History:

District court granted appellee's motion for summary judgment.

Issue:

Is there a likelihood of confusion between the parties' jeans?

Rule:

There are eight factors used in determining the likelihood of confusion as to the source of goods:

  1. The strength of the mark
  2. The degree of similarity of the marks
  3. The proximity of the products
  4. Bridging the gap
    • If the trademark owner intends to enter the alleged infringer's market, it would lead to future confusion.
  5. Actual confusion
  6. The junior user's good faith in adopting the mark
  7. The quality of the respective goods
  8. The sophistication of relevant buyers

Reasoning:

The factors must be applied with respect to both the likelihood that appellants' stitching will confuse consumers that appellee is associated regardless of labeling and the likelihood that someone will confuse the jeans when being worn by another post-purchase.

  1. Appellee's pattern is a fanciful incontestable registered trademark with very string secondary meaning associating it with appellee's product.
  2. The two stitching patterns are "essentially identical." The only difference is that appellants' arcs extend ¾ inch lower at the intersection. This is imperceptible at any significant distance. Since the stitching serves no practical function, appellants' stitching being almost identical is especially likely to appear associated with appellee.
  3. While appellants argue that their jeans are designer jeans that target a different market than appellee's, evidence shows that there is a significant overlap. Targeting different markets actually makes it more confusing to consumers, as they may think appellant is a subsidiary formed for that purpose by appellee.
  4. Appellee's affidavits stated that it was planning to enter the designer jean market. Even if it did not use the stitching, this would still confuse consumers.
  5. There is no solid evidence of actual confusion, but this is not required.
  6. Appellants happened to recreate the stitching by coincidence and did not intend to infringe upon appellee's trademark, but this factor is largely irrelevant in this context.
  7. Appellants jeans are not of an inferior quality, reducing the amount of harm that possible confusion would do to appellee. However, this could still confuse people as it is not just a cheap knockoff, but a quality product that could seemingly have been made by appellant.
  8. The average designer jean buyer is sophisticated when it comes to jeans. Appellants believe that this would reduce confusion as the buyers would notice the differences, but these sophisticated buyers are the ones most likely to pay attention to the back pocket stitching and begin to think that they're associated with appellee.

Holding:

Yes, consumers are likely to mistakenly associate appellant's jeans with appellee. Affirmed.

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